Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Lahore High Court on 2024-10-31, officially reported as 2024 LHC 5108. In this matter between Syed Shouzab Imran Kazmi and Syeda Iffat Bukhari And 2 Others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf Title: Syed Shouzab Imran Kazmi vs Syeda Iffat Bukhari And 2 Others Case No.: Writ Petition No.2521 Of 2022 Date of Judgment:2024-10-31 Reported As: 2024 LHC 5108, PLD 2025 Lahore 18 Result: Petition Dismissed

JUDGMENT

JUDGMENT MIRZA VIQAS RAUF, J. The petitioner was married to respondent No.1 (hereinafter referred to as "respondent") on 19th June, 2003 in lieu of dower amounting to Rs.50,000/-. From the wedlock four sons namely Abdul Mutlib Kazmi, Abu Talib Kazmi, Hassan Raza and Ibn-e-Hussain were born. On account of some differences, the respondent instituted a suit for dissolution of marriage, recovery of dower, maintenance, gold and dowry articles before the Family Court, Attock. Suit was resisted by the petitioner, while submitting his written statement, controverting the assertions contained in the plaint. On 28th May, 2022 on failure of reconciliation proceedings suit for dissolution of marriage was decreed in favour of the respondent on the basis of khula in terms of Section 10(5) of the Family Courts Act, 1964 (hereinafter referred to as "Act, 1964") subject to relinquishing of dower by the respondent as per law and with regard to the remaining controversy issues were framed. Feeling dissatisfied the petitioner filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution") on multiple grounds. 2. The petition was admitted for regular hearing by way of order dated 21st September, 2022 and in view of the matter in controversy involved in this petition, Ch. Imran Hassan Ali, Advocate was appointed as amicus curiae to assist the Court. It took numerous dates to conclude the hearing and finally hearing is completed on 31st October, 2024. Syed Muddasir Abbas Kazmi, Advocate for the petitioner submitted that parties to the lis by faith are observing "Fiqah-e-Jafria" and there are specific bindings in event of dissolution of marriage between them on the basis of Talaq or Talaq-e-Khul. He added that marriage between the spouses relating to "Fiqah-e-Jafria" can only be dissolved after recitation of "Seeghas" by the

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husband without any influence or coercion. Learned counsel emphasized that in view of amendment in Section 7 of the Muslim Family Laws Ordinance, 1961 when the spouses belong to "Fiqah-e-Jafria", marriage can only be dissolved in the manner prescribed therein. It is also one of the contentions of learned counsel for the petitioner that in view of law laid down in the case 2022 Federal Shariat Court 25) the impugned order is not tenable. He further contended that according to Para No.310 of Muhammadan Law by D.F. Mullah a divorce must be pronounced only in Arabic and that too in a specific form. In order to supplement his contentions, learned counsel also placed reliance on Syed ALI NAWAZ GARDEZI versus LT.-COL. MUHAMMAD YUSUF (PLD 1963 Supreme Court 51), Mst. MARYAM BANO versus HUSSAIN ALI AND ANOTHER (1984 CLC 1961), Syed AZHARUL HASSAN NAQVI versus HAMIDA BIBI alias ESHRAT JAHAN and 3 others (1987 CLC 1041), THE STATE versus SYEDDA SALMA BEGUM AND ANOTHER (PLD 1965 (W.P.) Karachi 185) and Syed ASAD RAZA NAQVI versus Mst. SAIMA FATIMA and another (2014 MLD 254). 4. Mr. Khalid Ishaque, learned Advocate General Punjab contended that even if parties belong to "Fiqah-e-Jafria" marriage can be dissolved on the basis of khula. He added that amendment in Section 7 of the Muslim Family Laws Ordinance, 1961 is only to the extent of Federal Capital Territory and does not apply to marriages solemnized in Punjab. Learned Advocate General Punjab emphasized that khula is not against any injunction of Islam and no exception can be taken to the decree of dissolution of marriage passed in favour of respondent (wife). In the last, learned Advocate General Punjab argued that Section 10(4) of the Act, 1964 provides summary procedure in case of dissolution of marriage on the basis of khula, which has been declared by the Federal Shariat Court as valid legislation. Placed reliance on Mst. KHURSHID BIBI versus Baboo MUHAMMAD AMIN (PLD 1967 Supreme Court 97), SALEEM AHMAD and others versus GOVERNMENT OF PAKISTAN through Attorney General of Pakistan and 2 others (PLD 2014 Federal Shariat Court 43) and Mst. BALQIS FATIMA versus NAJM-UL-IKRAM QURESHI (PLD 1959 (W.P.) Lahore 566). 5. Ch. Imran Hassan Ali, Advocate/amicus curiae at the very outset raised question regarding maintainability of this petition on the parameters of writ of certiorari. He submitted that dissolution of marriage between the spouses relating to "Fiqah-e-Jafria" is not prohibited in Act, 1964, which can be dissolved in a summary manner. It is emphatically argued that court can grant decree of khula without consent of the husband. It is also one of the arguments of learned amicus curiae that in view of doctrine of severability when some particular provision of a statute offends or is against a constitutional provision that provision is severable from the rest of the statute, only that offending provision will be declared void by the Court and not the entire statute. Placed reliance on BAZ MUHAMMAD KAKAR and others versus FEDERATION OF PAKISTAN through Ministry of Law and Justice and others (PLD 2012 Supreme Court 923), Haji SAIF-UR RAHMAN SHAHEEN versus ISLAMIC REPUBLIC OF PAKISTAN through Attorney General of Pakistan, Islamabad and 4 others (PLD 2024 Federal Shariat Court 9) and KHURRAM SHEHZAD versus FEDERATION OF PAKISTAN through Ministry of Law and Justice Commission of Pakistan Islamabad and another (PLD 2023 Federal Shariat Court 286). 6. Learned counsel for the respondent, while defending the impugned order submitted that self- contradictory stance was taken by the petitioner in his application for dismissal of suit as is evident from Para Nos.9 & 10 of the said application and the impugned order resulting into dissolution of marriage by way of Khula is unexceptionable. 7. Heard. Record perused. 8. The petitioner is aggrieved of order of dissolution of marriage on the basis of khula passed by the Family Court, while invoking Section 10(5) of the Act, 1964. The petitioner has though initially challenged the vires of the order on two-fold grounds; firstly, that the Family Court established under the Act, 1964 is not vested with the authority to dissolve the marriage by way of khula as

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spouses are observing Shia sect and secondly that the decree of khula cannot be awarded to the respondent summarily and without consent of the petitioner (husband) and performance of necessary "Seeghas" on his part. During the hearing learned counsel, however, opted not to press the objection with regard to jurisdiction of Family Court. The moot point thus emerges for determination is as under:- "Whether a marriage interse spouses observing "Shia" sect can be dissolved by the Family Court through khula without consent of husband and performance of "Seeghas"?" 9. Before pondering upon the core issue, it would be apposite to observe that all Muslims are to be governed by the Quranic injunctions. Allah almighty in "Surah-Al-Baqarah" verse 229 commands in the following words :- Divorce is twice. Then [after that], either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of All h.1 But if you fear that they will not keep [within] the limits of All h, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of All h, so do not transgress them. And whoever transgresses the limits of All h - it is those who are the wrongdoers [i.e., the unjust]. To understand the theme and spirit of the above stated verse in better terms, we may have a recourse to the "Tafsirs" by some of renowned jurists and scholars on the subject. As per Abul Ala Maududi, Tafhim-al-Qur'an :- "Divorce may be pronounced twice; then either the wife be kept honourably or parted with gracefully. And it is not lawful for you to take back anything out of what you have given them. There is, however, an exception to this; if you fear that they might not be able to keep within the limits imposed by Allah, there is no harm if both agree mutually that the wife should obtain divorce by giving something as compensation to the husband. These are the bounds set by Allah; therefore do not violate them, for those who violate the bounds of Allah are the transgressors." Muhammad Asad, The Message of The Qur'an:- "A divorce may be revoked twice, whereupon the marriage must either be resumed in fairness or dissolved in a goodly manner. And it is not lawful for you to take back anything of what you have ever given to your wives unless both partners 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 the two may not be able to keep within the bounds set by God, there shall be no sin upon either of them for what the wife may given up to her husband in order to free herself. These are the bounds set by God; do not, then, transgress them: for they who transgress the bounds set by God - it is they, they who are evildoers!" Muhammad Taqi Usmani, The Noble Quran :- "Divorce is twice; then either to retain in all fairness, or to release nicely. It is not lawful for you to take back anything from what you have given them, unless both the apprehend that they would not be able to maintain the limits set by Allah. Now, if you apprehend that they would not maintain the limits set by Allah, then, there is no sin on them in what she gives up to secure her release. These are the limits set by Allah. Therefore, do not exceed them. Whosoever exceeds the limits set by Allah, then, those are the transgressors" Sayyid Mohammad Hossein Tabataba'i, Tafsir-al-Mizan :- "Divorce is twice; then keep (them) in fairness or let (them) go with kindness; and it is not lawful for you to take any part of what you have given them, unless both fear that they cannot keep within the limits of Allah; then if you fear that they cannot keep within the limits of Allah, there is no blame on them for what she gives up (to become free thereby). These are the limits of Allah, so do not exceed them, and whoever exceeds the limits of Allah then these it is that are the unjust"

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10. Islam permits dissolution of marriage between Muslim spouses in three ways i.e. Talaq, Mubarat and Khula. As the proposition in hand is related to last one, so it would be apt to restrict myself to this extent. The literal meaning of term "khula" is to extract oneself. According to Ibn Manzur Muhammad bin Mukarram (Lisan al-'Arab), the root of "khul" is "khal" and the verbal noun "khal" refers to the act of extraction, removal, detaching or tearing out. In its real sense, "khal" is generally associated with things or object, such as garments. According to Alauddin Masu'd al-Kasani (Badda 'i'al-sana'i' fi tarib al-shara 'i') the redemption (khul) is lexically, "al-naz" which means to pull out/extract something from something. Thus, "khala'ha" means that he has removed her from his marriage. According to Badruddin Mahmud al-'Ayni (al-Binayah), the term "khul" is used technically for marital "extraction", in that it is an act of receiving compensation from the wife in exchange of her being relieved from the marital tie. Thus, in simple terms, "khul" denotes a woman securing the annulment of her marriage in lieu of payment of some compensation to her husband. 11. Above all "Surah Al-Baqarah" verse 229 is complimented by ahadith of the Holy Prophet (Peace Be Upon Him) from the events of sunnah one of which recounts (in Sahih al-Bukhari) that when Habibah bint Sahl complained to the Prophet Muhammad (Peace Be Upon Him) about wanting to separate from her husband purely on account of his physical attributes, she was allowed to do so subject to return of the garden given to her as dower. The Prophet Muhammad (Peace Be Upon Him) then ordered her husband, Thabit bin Qays, to accept the garden and separate from her. 12. "Khula" denotes the right of a Muslim woman to seek dissolution of her marriage in which she gives or consent to give a consideration to the husband for her release from marriage as determined by the court. In Subcontinent origin of khula was surfaced in the case of Mt. Umar Bibi versus Mohammad Din (A.I.R. (32) 1945 Lahore 51) and it was pronounced that khula cannot be directed by Qazi or court which view was then adopted in Mst. SAYEEDA KHANAM versus MUHAMMAD SAMI (PLD 1952 Lahore 113) while holding that khula, whilst initiated from the woman's desire from separation, is dissolution of marriage by agreement between the parties, against consideration to be paid by the woman to the husband. It was thus held that a woman's hatred for her husband, howsoever, intense is not a valid ground for dissolution of marriage under Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939, unless she can persuade him to release her from the marital bond. 13. The above principle of law, however, then went under a radical change as in the case of Mst. BALQIS FATIMA versus NAJAM-UL-IKRAM QURESHI (PLD 1959 (W.P.) Lahore 566) Full Bench of this Court carved out "Khula" as a right of wife to seek from the court albeit the husband does not agree upon dissolution of marital tie. The Full Bench, while heavily relying upon and interpreting verse 2:229 noted hereinabove coupled with ahadith including Habibah's case as well as practices of the Khulafa-e-Rashideen and opinion of Maulana Maududi (in Huqooq-ul-Zaujain) as well as other interpretations by renowned Muslim Scholars held that the commandment to refer the matter to the Qazi would be pointless, if he could not make a determination that the parties cannot live within the bounds set by Allah almighty without the husband's consent to the dissolution of marriage. It would not be out of context to mention here that in arriving at its conclusion, the court observed that though all schools of thought do not accept the jurisdiction of the Qazi to dissolve a marriage on basis of khula without the husband's consent, however, in rendering judgment on a question of interpretation of the Quran, the High Court is not bound by the opinions of jurists, especially where the plain meaning of the verse is clear. Thus, the objection that most interpretations by Muslim exegetes of verse 2:229 envisage consent of the husband was authoritatively dispelled. This view of the court was affirmed by the Supreme Court of Pakistan in Mst. KHURSHID BIBI versus Baboo MUHAMMAD AMIN (PLD 1967 Supreme Court 97). The relevant extract from the same is reproduced below :-

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"A few words may now be said about the concept of marriage in Islam. As is well-settled, marriage among Muslims is not a sacrament, but in the nature of a civil contract. Such a contract undoubtedly has spiritual and moral overtones and undertones, but legally, in essence, it remains a contract between the parties which can be the subject of dissolution for good cause. In this respect, Islam, the Din-al-Fitrat, conforms to the dictates of human nature and does not prescribe the binding together of a man and woman to what has been described as "holy deadlock." The husband is given the right to divorce his wife, though, of course, arbitrary divorces are discountenanced. There is a saying of the Prophet to the effect that "the most detestable of lawful things in Allah's view is divorce" Abou Daood). Similarly, the wife is given the right to ask for khula in cases of extreme incompatibility though the warning is conveyed by ahadith against too free exercise of this privilege, one of which says that women asking for khula will be deprived of the fragrance of paradise (Trimizi) The warning both to man and woman in this regard, is obviously placed on the moral rather than the legal plane and is not destructive of their legal rights. The Qur'an also declares: "Women have rights against men, similar to those that, the men have against them, according to the well-known rules of equity" It would, therefore, be surprising if the Qur'an did not provide for the separation of the spouses, at the instance of the wife, in any circumstances. The Qur'an expressly says that the husband should either retain the wife, according to well-recognised custom-- (Imsak-un-bil-ma'roof) or release her with grace--(Tasree-hun-bi- ihsan). The word of God enjoined the husband not to cling to the woman, in order to cause her injury "Another hadith declares-- Lazarar-un-wa-la-zarar-fil-Islam) "Let no harm be done, nor harm be suffered in Islam". In certain circumstances, therefore, if the husband proves recalcitrant and does not agree to release the woman from the marital bond, the Qazi may well intervene to give redress and enforce the Qur'anic injunctions. As was pointed out by Kaikaus, J. in Mst. Balqis Fatima's case the foundation of the law relevant to khula is contained in the Qur'anic verses, which may be translated as follows: "Such divorce may be pronounced twice; then, either retain them in a becoming manner or send them away with kindness. And it is not lawful for you that you take anything of what you have given them, unless both fear that they cannot observe the limits prescribed by Allah. But, if you fear that they cannot observe the limits prescribed by Allah, then it shall be no sin for either of them in what she gives to get her freedom. These are the limits prescribed by Allah, so transgress them not; and whose transgresses the limits prescribed by Allah, it is they that are the wrong-doers." We may first consider the opinions of the commentators of the Qur'an as to the meaning of these verses, bearing on khula. The words (if you fear) are addressed to the community or (those in authority from among you), and include the Qazi, who represents the community, for adjudication of disputes. This is borne out from the commentary of the Qur'an by Qurtabi, known as ( "Al Ja'me- le-Ahkaam al-Qur'an". The learned author says that this is the opinion of Ibn-e-Abbas and Malik- bin-Anas as well as the majority of the legists. Similar opinion is expressed by Zamakhshri in his well-known commentary (Alkashshaf), by (Nasafi) in his Tafseer, called (Madarak-ul-tanzil-wa- Haqaiq-ul-Ta'veel), by Baizavi) in his Tafsir Anwar-ul-Tanzil-wa Israr-ul-Ta'veel, by (Al-Qastallani) in his (Irshad-us-Sazi), by Jassas in his (Ahkamul Qur'an) and by the authors of (Tafsir Ibne Kasir) and (Tafsir Khazin). Baizavi distinctly says that this is so because the rulers are in a position to give orders when disputes are presented before them. In more recent times, Mufti Muhammad Abduh of Egypt, in his Tafsir Al Manay has endorsed this view. For analogy, the cases of (li'an) and (Inin) and Mafqoodel Khabar)(may be cited a in which cases the Qazi, it is settled, has the authority to separate the spouses, even if the husband is refusing to grant a divorce or is not available. The Hedaya, the (Radd-ul-Muhtar) and the (Ahkam-ul-Qur'an) of (Aljasas) agree in this respect. By the phrase "Limits of Allah", according to the above-cited commentators, reference is intended to the injunctions regarding the performance of conjugal obligations while living together. Ibne-

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Hammam)(in his)(Fateh-ul-Qadir), Vol. III, p. 199 and)(Jassas in his) (Ahkamul Qur'an), Vol. 1, p. 391 have adopted this view which also finds mention in Sahih Bokhari (Arabic Text), published by Karkhana Tijarat-i-Kutub, Karachi (Vol. II, p. 794). It is explained that incurable aversion to the husband, on the part of the wife would be sufficient justification for khula. Shah Wali Amin Ullah of Delhi in )( AI-Musawwa-min-Ahadith-al-Muatta Vol. II, p. 160) goes to the length of saying that "even if she obtains khul' without any reason (apart from personal dislike) it is lawful but not approved. The reason is that the Prophet and the Companions never inquired from her the reason for her (seeking) khul'." The question whether khula is to be equated with talaq, or it is a form of, dissolution of marriage in a category of its own, has been the subject of controversy amongst the jurists. Ibn-i-Rushud, in his Badaya-tul-Mujtahid, says that most of the ulema and Imam Malik and Imam Abu Hanifa are of the opinion that Khula is equivalent to talaq. On the other hand, Imam Shafe'i, Imam Ahmad, Imam Daood and out of the Companions, Ibn-e-Abbas were of the view that khula amounts to fiskh-i- nikah (cancellation or dissolution of marriage) and not talaq. Imam Shafe'i had also stated on another occasion that if the husband intended talaq, even in a contract of khula, it would operate as talaq and if he had the intention of fiskh-i-nikah, it will have effect as such. lbn-e-Hajar Asqlani in his books (Alderaya-fi-Takhrija-Ahadith-ul-Hidaya and Fat-hul-Bari) prefers the opinion of Ibn- e-Abbas on this point and casts doubt on the authenticity of the hadith which equates it with (irreversible divorce). He relies in this connection on a Tradition of the Prophet, which specified that Sabet-bin-Qais's wife, after the grant of khula, was ordered to pass one period of menstruation as her iddat and this would not be so if khula were talaq. He reiterates this position in (Talkhisul Habir Vol. III, p. 205). On the other hand, the authorities quoted, on behalf of the respondent, including the Hedaya, take the view that there is no difference between khula and talaq. This question need not detain us further. There are good reasons for the view that khula is separation and not talaq, as the right of the husband to take back the wife after khula, does not exist, as it does in the case of talaq- i-raja'i and the period of Iddat is different is the two cases. The relevant Ahadith are discussed by Shaukani in (Kitab-ul-Khul Vol. 111, p. 260) of his celebrated work (JLb9Yl JO) (Nail-al-Autar) and he reaches the conclusion that khula is not a type of talaq, but is a category apart from it. If this opinion is accepted, then it is clear that khula is not dependent on the will of the husband alone. But even if khula be regarded as talaq as seems to be the view of some of the orthodox Hanafi Jurists, the question arises whether the wife is not entitled, in appropriate cases, to demand a khula divorce from the husband, in the face of the latter's opposition. This problem finds no express treatment in the treatises of these Hanafi Jurists who content themselves by saying that divorce is the right of the husband." 14. In the case of SALEEM AHMAD and others versus GOVERNMENT OF PAKISTAN through Attorney General of Pakistan and 2 others (PLD 2014 Federal Shariat Court 43) in somewhat similar facts and circumstances the Federal Shariat Court held as under :- "18. The word "Khula" literally means "to put off". In the context of verse which states that "They are garment for you and you are garments for them. It denotes laying down by the husband of rights and authority over his wife, at her instance, on acceptance of consideration by means of the word "Khula". It signifies as conditional situation on the part of wife, entered into for the purpose of dissolving the marital tie at her instance, in lieu of a compensation paid or agreed to be paid by her to the husband out of her property. In case of mutual agreement on such an arrangement, the wife needs not go to court and ask for dissolution of her marriage as in such a situation the husband would release her from the marital bond and the wife would be free to marry any other person after the 'iddat' period, as would be required in her case, if she is or is not pregnant. The relevant verse in this connection is 229 of Sura AlBaqara (Reproduced herein above). As is evident, that mutual arrangement and agreement for putting an end to the marriage tie is not

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sinful in any way and appear commendable in case no reconciliation is possible. But a question arises if the husband does not agree to this arrangement and refuses to release her from his marital tie by not accepting any compensation even and also declines to divorce her, what should be the course of action for the wife? What would she do if reconciliation fails and the husband proves adamant to dissolve the marriage? Will it be justified to leave the wife who cannot live happily or perform her marital obligations grope in the darkness? Should she be pushed back to her husband to remain tongue tied, tight lipped, depressed, dejected, having a miserable survival throughout her whole life? Should she be kept, at the mercy of her in laws, vulnerable to indecent immoral life? Can anyone call this sort of situation morally justified on any standard? Will this position assigned to her not defeat the very object of marital peace and tranquility? Who will be…

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