Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mst. SARWAR JAN VS Respondent: ABDUR REHMANHonorable Justice Syed Manzoor H. GilaniK.D. Khan,Abdur Rashid Abbasi
2004 C L C 1785
2004 C L C 1785
[Azad J&K]
Before Syed Manzoor H. Gilani, C.J.
Mst. SARWAR JAN---Appellant
Versus
ABDUR REHMAN --- Respondent
Appeal No. 16 of 2003, decided on 29th October, 2003.
(a) Azad Jammu and Kashmir Family Courts Act, 1993-----
----S. 5 & Sched.---Dissolution of marriage on ground of Khula-- Dissolution of marriage on ground of Khula was a pure question of law and could be raised even before the highest Court of appeal---Such question would not require any evidence or proof as it was the statement of wife alone which was the determinative factor in the case of Khula-- Aversion, disliking, hatred, incompatibility of temperaments, mental, intellectual, social,. cultural or ideological disparity or conflicts, which had the apprehension of distorting the family life and happiness, were sufficient grounds for a wife to seek Khula---Union; in the present case was forced for the sake of family honour, it. would breed rather than solve the problems---Separation as against forced union would end the perpetual disharmony and enable both to start a new comfortable life-- Court had to judge the possibility of future relations of the spouses in an. objective manner as to whether there was any chance of their re continuation and happy marital life in future, irrespective of fact who was at fault---Assuming the wife was at fault and she did not want to live with the husband .any more at any cost whatsoever, should she be made hostage of her fault---Court should hate the sin not the sinner and would be committing another fault if she was forced to live against her free will or was kept tied in wedlock as long as husband's ego was not satisfied-- Such was not the spirit of Qur'an, Hadith or law laid down in the light of Qur'an.
1980 CLC 1212; 1993 SCR 330; 2004 YLR 1719; PLD 1984 SC 329; 1983 CLC 2390; PLD 1985 SC (AJ&K) 60; 1992 CLC,937; PLD 1986 Quetta 185; PLD 1981 Kar. 474; Balqis Fatima v. Najmul Ikram Qureshi PLD 1959 (W.P.) Lah. 566; Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97; Muhammad Yunus v. Mst. Razia Begum 1986 CLC 1996 and Dr. Akhlaq Ahmed v. Kishwar Sultana PLD 1983 SC 169 ref.
(b) Azad Jammu and Kashmir Family Courts Act, 1993------
----S. 5 & Sched.---Dissolution of marriage---Suit for dissolution of marriage---Wife had a right to obtain divorce from the husband and a Judge was obliged to order cancellation of contract of marriage when wife emphatically asserted that she could not keep the limits set by God---Equality was maintained between the spouses by allowing the wife that right through the intervention of Court as against absolute right of husband to divorce wife at any time and even without any reason---Wife was similarly empowered. to get the marriage cancelled on any reason whatsoever, whether husband was at fault or not-- -Unfettered powers of husband were counter-balanced by the right of wife to obtain dissolution of marriage through Court subject to the conditions that if the husband was not at fault, she was to compensate him and if he was found at fault, she was not to pay anything---That right could not be made hostage to husband's pleasure nor subjected to social or family bounds, except the satisfaction of the Court that in case marriage was not dissolved the spouses could not maintain the limits of God Almighty---However, as against marriage, which was a contract between the spouses only the dissolution of marriage had the apprehension of affecting the society and the State in case the spouses had minor children, that was why it was left to be decided by the Court---Wisdom behind subjecting the wife to seek dissolution of marriage through Court was to enable the Court to regulate the guardianship and maintenance problems of the minor or suckling children who remained attached to mother and not to the father.
(c) Azad Jammu and Kashmir Family Courts Act, 1993---
----S. 5 & Sched.---Dissolution of marriage on ground of Khula---As husband had the unfettered powers of dissolution of marriage by divorce, unless otherwise agreed upon between the spouses, the consequences of rescission of marriage by Talaq would be that the wife would be entitled to the entire amount of dower if not already received and other gifts, to the maintenance and residence during the period of Iddat, to the custody of children upto the age limit prescribed by Shariat on the husband's expenses, of course subject to their welfare and best interest---When the dissolution of marriage was sought by the wife who was otherwise not entitled to rescind the contract of marriage without any consideration on any of the grounds mentioned in Muslim Marriages Dissolution act, 1939, she could offer any consideration to the husband for her release from the marriage he if husband agreed, it would operate as Khula---If husband did not agree, she could approach Qazi, which was Court of competent jurisdiction in the modern era, who was bound to order dissolution of marriage, as it was right of the wife to obtain Khula if she felt constrained to seek it ---Qazi/Court was bound to award compensation to husband to be payable by the wife---Compensation was normally the amount equal to the dower and other gifts received by the wife---Court, however; could award even more than the dower and other gifts---Compensation in the case of breach of marriage contract, was for the injuries to feelings, affections, wounded pride, reputation as well as for the loss of marriage ---Khula could not be allowed on mere, asking of the wife or on her choice, but it could not be refused when conduct of the parties did not leave a room for their co-existence as wife and husband---Was better to err on the right side if at all it was an error-- States and Governments were under obligations not only under Qur'an and Sunnah, but also under international conventions as well to ensure dignity and rights of women during marriage and at its dissolution.
Balqis Fatima v. Najmul Ikram Qureshi PLD 1959 (W.P.) Lah. 566; PLD 1985 SC (AJ&K) 60; PLD 1986 Quetta 185; Humaira Mehmood v. The State PLD 1999 Lah. 494 and Mst. Naeeba Begum v. Abdul Khalilq 2004 YLR 1719 ref.
K.D. Khan for Appellant.
Abdur Rashid Abbasi for Respondent.
Date of hearing; 29th October, 2003.
ORDER
This appeal is filed against the judgment and decree passed by Judge Family Court, Muzaffarabad on 21-4-2003, whereby the suit filed by appellant for dissolution of marriage is dismissed. The appellant alleged before the trial Court that her Nikah took place 15 years ago in consideration of dower amounting to Rs.5,525. Four out of six children born out of this wedlock are alive. She alleged that behaviour and treatment of respondent towards the appellant became cruel a few years ago who started beating, abusing and resorting to ill and inhumane treatment against her According to appellant in view of inhumane and cruel treatment of the respondent she suffered from severe spiritual and mental torture and has developed extreme disliking against respondent with whom she cannot live in any case within the limits ordained by the Almighty.
2. The trial Court dismissed the suit as not proved. Judgment of the trial Court is assailed before this Court on the ground that trial Court has not appreciated the real controversy between the parties that relations between the spouses have become so strained that they cannot live together in accordance with the limits ordained by Allah. It is stated that in the circumstances of the case it was obligatory for the trial Court to have dissolved the marriage on the basis of Khula. A request is made to this Court to dissolve the marriage in lieu of dower of Rs.5,525.
3. The learned Advocates for the parties have filed written arguments. The learned counsel for appellant has contended that when it was proved and expressly made clear before the trial Court that spouses could not live within the limits ordained by Almighty, it was obligatory for the trial Court to have dissolved the marriage on the basis of Khula even if the cruelty or other grounds as alleged by the appellant were not proved. He placed reliance upon 1980 CLC 1212; 1993 SCR 330; 2004 YLR 1719 and PLD 1984 SC 329.
4. The learned counsel for the respondent contended that as the appellant has not been able to prove cruelty, ill or inhumane treatment alleged against the respondent, the trial Court was left with no option but to dismiss the suit. The learned counsel objected to the plea of dissolution of marriage on the basis of Khula by contending that appellant did not claim the dissolution of marriage on the basis of Khula before the trial Court and in the absence of a specific claim the trial Court as well this Court are not empowered to dissolve the marriage on the basis of Khula as the respondent is not in a position to rebut the claim. He further contended that whether the relations between them became so strained that they cannot live together within the limits ordained by Allah, is a question of fact on which no finding can be given without evidence. He placed reliance upon 1983 CLC 2390. He further contended that parents of appellant have appeared as witnesses before the trial Court stating that appellant is at fault not the respondent and appellant has not alleged any enmity against them. The learned counsel opposed the dissolution of marriage contending that animosity if any, is created by the appellant not by the respondent and she cannot be given the bonus of that by dissolving the marriage on the basis of Khula. According to the learned Advocate if such a claim of the appellant is entertained, it is likely to create and encourage an atmosphere of be wilderness, uprooting the foundation of the family system, shattering the institution of family and shocking a Muslim society. The learned counsel contended that a wife cannot claim Khula as a matter of her choice, unless a reasonable proof to satisfy the judicial mind of the Court is brought on record that the parties cannot live together as husband and wife within the limits ordained by Allah Almighty. The learned counsel placed reliance upon PLD 1985 SC (AJ&K) 60; PLD 1983 SC 169; 1986 CLC 1996; 1992 CLC 937; PLD 1986 Quetta 185 and PLD 1981 Kar. 474.
5. After hearing the learned counsel for the parties, I have gone through the record of the trial Court as well as the authorities of law cited by the learned counsel for the parties. The' thrust of written arguments from both sides is for and against the dissolution of marriage on the basis of Khula, hence the only point which requires adjudication is as to whether the marriage in this case should be dissolved on the basis of Khula or not.
6. As stated above, the appellant has throughout maintained that she cannot live with the respondent against whom she has developed severe hatred and disliking due to his inhumane and cruel treatment. It is her case in pleadings as well as in evidence. Their wedlock is spread over, fifteen years with four living and two dead children. In her pre and post-trial statements, she has stood fast on her stand for separation. Even in her statement before me in the Court on 26-8-2003, in an effort to help them reach some reconciliation in view of fifteen years long union with half a dozen children, she could not be brought around. With this background of the case, the argument of the learned Advocate for the respondent that she did not raise the plea of Khula before the trial Court is misconceived. The above state of affairs itself makes out a case for Khula when her other pleas i.e. torture, beating etc. were not proved. Assuming otherwise, the appellant is at liberty to take up this plea even before this, Court. In the case of Balqis Fatima v. Najmul Ikram Qureshi PLD 1959 (W.P.) Lah. 566, the point of Khula was allowed to be raised for the first time in the High Court as a pure point of law. In the case of Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97 the Supreme Court allowed dissolution of marriage on Khula when Khurshid Bibi failed to get dissolution on other grounds from the lower Courts. The dissolution of marriage on the ground of Khula is a pure question of law, hence can be raised even before the Highest Court of appeal. It does not require any evidence or proof, as it is the statement of the wife alone, which is the determinative factor in the case of Khula and Prophet (p.b.u.h.) has accepted the bare statement of. wife sufficient for Khula in the below mentioned cases, without requiring her to lead proof in support of her contention.
7. In the case of Khansa Bint Khazam reported in Bukhari, the Holy Prophet (p.b.u.h.) stopped her marriage when she complained that she had refused to marry at the place she is being married by her father.
8. In the case of Thabit Bin Qais reported in Bukhari, the Holy Prophet (p.b.u.h) ordered him to divorce his wife, when she complained that she cannot endure to live with him. She was asked to return the garden received from Thabit Bin Qais.
9. In the case of Barrira and Mughith, the marriage was dissolved when Barrira simply complained that she does not like Mughith, even though latter was weeping in love for his wife (Bukhari).
10. In all the above cases the Holy Prophet (p.b.u.h.) believed the bare statement of the wife and ordered dissolution of course subject of their reimbursement of all that they had taken from their husbands. Thus, aversion, disliking, hatred, incompatibility of temperaments, mental, intellectual, social, cultural or ideological disparity or conflict, which has the apprehension of distorting the family life and happiness, are sufficient grounds for a wife to seek Khula. In case the union is forced, for the sake of family honour, it will breed rather than solve the R problems. Separation as against forced union will end the perpetual disharmony and enable both to start a new comfortable life. It is held in the case of Muhammad Yunus v. Mst. Razia Begum 1986 CLC 1996 that when an inference is available from the evidence and conduct of spouses that reconciliation between them was not possible, it is better to separate than to live in an atmosphere perpetually saturated with suspicions, mutual distrust, discord and hatred for each other. Under such atmosphere human life becomes a mere waste.
11. Assuming the animosity having been created by the appellant, the Court has to judge the possibility of future relations of the spouses in an objective manner as to whether there is any chance of their re rapprochement and happy marital life in future, irrespective of the fact who is at fault. Assuming that the wife is at fault and she does not want to live with the husband any more at any cost whatsoever, should she be made hostage of her fault? We should hate the sin not the sinner. We will be committing another fault if she is forced to live against her free will or is kept tied in wedlock as long as husband's ego is not satisfied. It is not the spirit of Qur'an, Hadith or law laid down in the light of Qur'an. Same was the spirit of law laid down in the case of Dr. Akhlaq Ahmed v. Kishwar Sultana PLD 1983 SC 169 referred by the learned counsel for respondent. If in Judge's estimation there is no chance he is bound by what Allah has said in Verse No.229 of Sura Al-Baqarah.
12. In Verse No.229 of Sura Al-Baqrah, as translated and printed in English by King Fahd Holy Qur'an, Printing Complex Al-Madinah, it is ordained by Almighty Allah:--
"A divorce is only permissible twice after that, The parties should either hold together on equitable terms, Or separate with kindness. It is not lawful for you (Men). To take back Any of your gifts (from your wives), Except when both parties Fear that they would be Unable to keep the limits Ordained by Allah If ye (Judges) do indeed Fear that they would be Unable to keep the limits Ordained by Allah. There is no blame on either of them if she give something for her freedom. These are the limits Ordained by Allah; So do not transgress them. If any do transgress the limits ordained by Allah, Such persons wrong (Themselves as well as others).
13. In commentary on this Verse at footnote 258, it is opined:----
"All other prohibitions and limits prescribed here are in the interests of good and honourable lives for both sides, and in the interests of a clean and honourable social life, without public or private scandals. If there is any fear that in safeguarding her economic rights, her very freedom of person may suffer, the husband refusing the dissolution of marriage, and perhaps treating her with cruelty, then, in such exceptional cases, it is permissible to give some material consideration to the husband, but the need and equity of this should be submitted to the judgment of impartial Judges, i.e., properly constituted Courts. A divorce of this kind is called Khula. "
14. In translation and commentary of this Verse of Holy Qur'an by Muhammad Asad printed by Dar Al-Andalus Gibraltar, it is ordained at page 50:--
"A divorce may be (revoked) twice, whereupon the marriage must either be resumed in fairness or dissolved in goodly manner.
And it is not lawful for you to take back anything of what you have ever given to your wives unless both (parties) have cause to fear that they may not be able to keep within the bounds set by God; hence, if you have cause to fear that they two may not be able to keen within the bounds set bar God there shall be no sin upon either of them for what the wife may give up (to her husband) to order to free herself."
15. Its commentary on the same page at footnote is as follows:--
"All authorities agree in that this Verse relates to the unconditional right on the part of the wife to obtain a divorce from her husband such a dissolution of marriage at the wife's instance is called "Khul", There exist a number of highly authenticated Traditions to the effect that the wife of Thabi Ibn Qay's, Jamilah, came to the Prophet and demanded a divorce from her husband on the ground that, in spite of his irreproachable character and behaviour, she "disliked him as he would dislike falling into unbelief after having accepted Islam". Thereupon the Prophet ordained that she should return to Thabit the garden which he has given her as her dower (Mahr) at the time of their wedding, and decreed that the marriage should be dissolved (Several variants of this Tradition have been recorded by Bukhari, Tirmidhi, Ibn Majah and Bayhaqui, on the authority of Ibn 'Abbas.) Similar Traditions, handed down on the authority of Aishah and relating to a woman called Hubaybah Bint Sahl, are to be found in the Muwatta of Imam Malik, in the Musand of Imam Ahmed, and in the compilations of Nassar and Abu Da'ud (in one variant, the latter gives the woman's name as Hafsah Bint Sahl.) In accordance with these Traditions, Islamic Law stipulates that whenever a marriage is dissolved at the wife's instance without any offence on the part of the husband against his marital obligations, the wife is the contract breaking party and must, therefore, return the dower which she received from him at the time of concluding the marriage; and in this event "there shall be no sin upon either of them" if the husband takes back the dower which the wife gives up of her own free will."
16. What emerges from above is that a wife has a right to obtain divorce from the husband and a Judge is obliged to order cancellation of contract of marriage when wife emphatically asserts that she cannot keep' the limits set by God. An equality is maintained between the spouses by' allowing the wife this right through the intervention of Court as against absolute right of husband to divorce the wife at any time and even without any reason: The wife is similarly empowered to get the marriage cancelled on any reason whatsoever, whether husband is at fault or not. The unfettered powers of husband are counter balanced by the right of wife to obtain dissolution through Court subject to the condition that if the husband is not at fault, she is to compensate him and if he is found at fault she is not to pay anything. This right cannot be made hostage to husband's pleasure nor subjected to social or family bounds, except the satisfaction of Court that in case marriage is not dissolved the spouses cannot maintain the limits of God Almighty. However, as against marriage, which is a contract between the spouses only, the dissolution of marriage has the apprehension of affecting the' society and the State in case the spouses have minor children, that is why it is left to be decided by the Court The wisdom behind subjecting the wife to seek dissolution through Court therefore, appears to enable the Court to regulate the guardianship and maintenance problems of the minor children or suckling, who remain attached to mother not to the father, otherwise multiple social and cultural problems like those faced by Europe and arise due to free friendships and separations.
17. The Muslim marriage in essence is a contract as against sacramental concept of Christianity and Hinduism. The Holy Prophet (p.b.u.h.) said, "The stipulations most entitled to be abided by are those with which you are given the right to enjoy the (women) private parts (i.e. the stipulation of the marriage contract).
18. In Bilqis Fatima's case, Justice S.A. Mehmood dilating upon the subject, held that "There are no basic ideological reasons militating against the view that the Holy Qur'an in conferring a right on woman to seek dissolution of marriage and providing the forum and rule of decision, authorized the Qazi to dissolve a marriage by Khula. In Islam, marriage is a contract and not a sacrament, and whatever sanctity attaches to it, it remains basically a contractual relationship between the parties. Islam, recognizing the weaknesses of human nature, has permitted the dissolution of marriage, and does not make it an unseverable tie, condemning the spouses to a life of helpless despair. The Qur'an legislation makes it clear that it has raised the status of women. The Holy Qur'an declares in Verse 2:228 that 'women have rights against men similar to those that men have against them. It conferred the right of Khula on women as against the fight of Talaq in men".
19. Consequently the consequences arising from rescission of "contract have to follow. If the conditions of marriage contract are to writing, those have to be strictly enforced in view of above saying of Prophet (p.b.u.h.) and if these are not in writing, these may be amicably settled between the parties, of course with the aid of their elders or by an order/decree of the Court. As the husband has the unfettered powers of dissolution of marriage by divorce, hence unless otherwise agreed upon' between the spouses, the consequences of decision of marriage by Talaq would be that the wife would be entitled to the entire amount of dower if not already received and other gifts; to the maintenance and residence during the period of Iddat; to the custody of children upto the age limit prescribed by Shariah on the husband's expenses, of course subject to their welfare and best interest.
20. When the dissolution of marriage is sought by the wife who is otherwise not found entitled to rescind the contract of marriage without any consideration on any of the grounds mentioned in Dissolution of Muslim Marriages Act, 1939, she can offer any consideration to the husband for her release from the marriage tie. If the husband agrees, it will operate as Khula i.e. dissolution of marriage by agreement (Mubbarat). if the husband does not agree, she can approach to Qazi, which is Court of competent jurisdiction in the modern era, who is bound to order dissolution as it is right of the wife to obtain Khula if she feels constrained to seek it, however, the Qazi/Court is bound to award compensation to husband to be payable by the wife. It is normally the amount equal to the dower and other gifts received by the wire. However, Court can award even more than the dower and other gifts as discussed in the renowned books of Fiqah i.e. Hidaya, Dur-e-Mukhtar etc. and it also finds favour from the case of Bilqis Fatima PLD 1959 E (W.P.) Lah. 566.
21. Compensations in the case of breach of marriage contract are for the injuries to feelings, affections, wounded pride, reputation as well as for the loss of marriage.
22. As said somewhere above, whenever such a case was brought to the notice of Holy Prophet (p.b.u.h.) he immediately passed order of dissolution of marriage on the bare statement of the wife without requiring her to lead the proof in support of her contentions. Aversion, disliking or hatred relates to mental perception of a person not susceptible to any measurement or proof, hence can never be subjected to any proof. What at the most can be measured as its level. If it is low and soluble one should persuade and motivate the couple to reconcile but if it is high on fuel, best course is to depart them in the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.