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Official Citation: 2024 LHC 3078
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-06-12
Parties: Syed Asif Hussain Shah, Rizwan Ahme vs Federation of Pakistan etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-06-12, officially reported as 2024 LHC 3078. In this matter between Syed Asif Hussain Shah, Rizwan Ahme and Federation of Pakistan etc, 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.
Case cited as 2024LHC3078
Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf Title: Syed Asif Hussain Shah, Rizwan Ahme vs Federation of Pakistan etc Case No.: Review Application No.04 of 2024 Date of Judgment:2024-06-12 Reported As: 2024 LHC 3078 Result: Petition Disposed of
JUDGMENT
JUDGMENT MIRZA VIQAS RAUF, J. This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution") primarily challenges the vires of order dated 19th December, 2023, whereby learned Judge Family Court, Rawalpindi, on failure of reconciliation proceedings, proceeded to decree the suit for dissolution of marriage on the basis of khula, instituted by respondent No.4 (hereinafter referred to as "respondent"). The petitioner also calls in question the vires of proviso to Sub-Sections 4 & 5 of Section 10 of the Family Courts Act, 1964 (hereinafter referred to as "Act, 1964"), being contrary to Articles 4, 8, 9 and 10-A of the "Constitution". In view of questions raised in this petition, it was admitted for regular hearing by way of order dated 23rd January, 2024 and notice under Order XXVII-A of the Civil Procedure Code (V of 1908) was also issued to the learned Advocate General, Punjab. For the purpose of ease of reference, order is reproduced below:- "The petitioner was married with respondent No.4. On account of some differences, respondent No.4 instituted a suit for dissolution of marriage on the basis of Khula, which was decreed by way of order dated 19th December, 2023 on failure of reconciliation proceedings. 2. Learned counsel for the petitioner inter-alia contends that section 10 of the Family Courts Act, 1964 provides detailed procedure for the purpose of reconciliation between the spouses. She adds that the marriage was dissolved on the basis of Khula in a mechanical manner through impugned order. Submits that before passing a decree for dissolution of marriage on the basis of Khula, it was obligatory for the Family Court to hold reconciliation proceedings in an effective manner and also seek the consent and willingness of husband before passing the decree for Khula. Learned
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counsel emphasizes that the Family Courts are dissolving the marriages on the basis of Khula in haphazard manner, which is against the Islamic injunctions. Contends that the proviso to subsection 4 and subsection 5 of section 10 of the Family Courts Act, 1964 are contrary to Articles 4, 8, 9 and 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. In order to supplement her contentions, learned counsel places reliance on SALEEM AHMAD and others v. GOVERNMENT OF PAKISTAN through Attorney General of Pakistan and 2 others (PLD 2014 Federal Shariat Court 43) and FEDERATION OF PAKISTAN v. AITZAZ AHSAN and another (PLD 1989 Supreme Court 61). 3. Points raised need consideration. Admit. Notice. Since vires of sub-Sections 4 and 5 of section 10 of the Family Courts Act, 1964 are in question, so notice under section XXVIIA of the Code of Civil Procedure (V of 1908) be also issued to the learned Advocate General, Punjab." 2. Before moving further, it would be apposite to have a preview of necessary facts giving rise to this petition. The petitioner was married to the "respondent" on 14th February, 2002 according to Shariat Muhammadi and dower was fixed as Rs.50,000/- in the shape of gold ornaments. The spouses were blessed with three children, however, on account of some differences, "respondent" instituted a suit for dissolution of marriage on the basis of khula. On failure of reconciliation proceedings, suit was decreed by way of order dated 19th December, 2023, hence this petition. 3. Learned counsel for the petitioner submitted that marriage is sacred relationship and every possible effort should be made to keep it intact. She also made reference to Ayat No.229 of Surah Al-Baqarah. Learned counsel emphasized that reconciliation in terms of Section 10 of the "Act, 1964" should be meaningful and marriage cannot be dissolved in a mechanical manner. It is contended with vehemence that before passing a decree for dissolution of marriage on the basis of khula, it is obligatory for the Family Court to hold reconciliation proceedings in an effective manner and also seek consent and willingness of the husband. Learned counsel emphasized that impugned order in the circumstances is not tenable under the law. Learned counsel, in the last, submitted that she would not challenge the vires of the law and to that extent does not press this petition. Placed reliance on SALEEM AHMAD and others v. GOVERNMENT OF PAKISTAN through Attorney General of Pakistan and 2 others (PLD 2014 Federal Shariat Court 43) and FEDERATION OF PAKISTAN v. AITZAZ AHSAN and another (PLD 1989 Supreme Court 61). 4. Mr. Khalid Ishaq, learned Advocate General, Punjab on the other hand submitted that marriage between Muslims can be dissolved by three modes i.e. Talaq, Mubarat and khula. Added that Talaq is an arbitrary and unilateral act of the husband, whereby he may divorce his wife whereas through Mubarat, spouses may agree to dissolution of marriage by their mutual consent. Learned Advocate General maintained that as to the right of divorce accorded to a man, a Muslim woman is granted the right to obtain divorce through khula by filing a suit in the court of law. Learned Advocate General also made reference to Section 2 of The Dissolution of Muslim Marriages Act, 1939, with the contention that it outlines the grounds on which a Muslim woman can seek a decree for dissolution of her marriage. In the last, learned Advocate General submitted that no yardstick can be laid to regulate the reconciliation proceedings before the Family Court. In support of his contentions, learned Advocate General, made reference to Syed AMIR RAZA versus Mst. ROHI MUMTAZ and others (2023 SCMR 1394), Mst. KHURSHID BIBI versus Baboo MUHAMMAD AMIN (PLD 1967 Supreme Court 97), Mst. BALQIS FATIMA versus NAJM-UL-IKRAM QURESHI (PLD 1959 (W.P.) Lahore 566), Dr. MAHMOOD-UR-RAHMAN FAISAL versus GOVERNMENT OF PAKISTAN through Secretary, Ministry of Justice, Law and Parliamentary Affairs, Islamabad (PLD 1994 Supreme Court 607), LIAQAT ALI versus DISTRICT COLLECTOR, GUJRAT and 4 others (2022 MLD 1195), SALEEM AHMAD and others versus GOVERNMENT OF PAKISTAN through Attorney General of Pakistan and 2 others (PLD 2014 Federal Shariat Court 43), ABDUL RAHIM versus Mst. SHAHIDA KHAN (PLD 1984 Supreme Court 329), IMRAN ANWAR KHAN and others versus PROVINCE OF THE PUNJAB through Secretary Ministry of Law, Lahore and others (PLD 2022 Federal Shariat Court 25) and Mst.
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FAZEELAT JAN and others versus SIKANDAR through his Legal Heirs and others (PLD 2003 Supreme Court 475). 5. It would not be out of place to mention here that "respondent" though arranged her representation through Mr. Muhammad Naseer Awan, Advocate but he did not turn up without any justifiable reason so I have no other option except to proceed in his absence. 6. Heard. Record perused. 7. In the light of respective contentions, noted hereinabove, the matter in issue is now only confined and restricted to the scope and import of reconciliation proceedings as embodied in Section 10 of the "Act, 1964" as the petitioner is challenging the vires of impugned order on the ground that the Family Court has failed to conduct reconciliation proceedings in a concrete and effective manner before dissolving the marriage. 8. The spouses are admittedly Muslims hence they are to be governed by the Quranic injunctions. To this effect Surah 2 Al-Baqarah, Ayat 229 is very pertinent for the resolution of matter in issue, which commends as under:- 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]. 9. After going through the Islamic injunctions it can be observed with all clarity that Islam permits dissolution of marriage between Muslim spouses in three ways i.e. Talaq, Mubarat and khula. Needless to reiterate that Talaq is an arbitrary and unilateral act of the husband, whereby, he may divorce his wife. Mubarat on the other hand is one of the forms of dissolution of marriage whereunder spouses may agree to part their ways through mutual consent. Contrary to both, a Muslim woman is also vested a right to obtain divorce through the court of law by instituting a suit, which is termed as "khula". 10. "Khula" denotes the right of a Muslim woman to seek dissolution of her marriage in which she gives or consents to give a consideration to the husband for her release from marriage as determined by the court. In addition, Section 2 of The Dissolution of Muslim Marriages Act, 1939 (hereinafter referred to as "Act, 1939) lays down the grounds on which a Muslim woman can seek a decree for dissolution of marriage. For ready reference and convenience, same is reproduced below:- "2. Grounds for decree for dissolution of marriage.- A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:- (i) that the whereabouts of the husband have not been known for a period of four years; (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years; [(iia) that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961] (iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards; (iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
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(v) that the husband was impotent at the time of the marriage and continues to be so; (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease; (vii) that she, having been given in marriage by her father or other guardian before she attained the age of [sixteen] years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated; [(viia) lian, Explanation.- Lian means where the husband has accused his wife of zina and the wife does not accept the accusation as true.] (viii) that the husband treats her with cruelty, that is to say, (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (b) associate with women of evil repute or leads an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran, (ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law: Provided that - (a) no decree shall be passed on ground (iii) until the sentence has become final; (b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and (c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfied the Court within such period, no decree shall be passed on the said ground." 11. There is, however, a mark distinction between dissolution of marriage through "khula" under the "Act, 1964" and "Act, 1939". To understand such distinction in better terms one cannot lost sight of recent judgment of the Supreme Court of Pakistan in the case of Ibrahim Khan versus Mst. Saima Khan and others (Civil Petitions No.4657 to 4659 of 2022). Relevant extract from the same is reproduced below:- "11. Where a woman files suit for dissolution of marriage under the grounds of DMMA or through khula, there are procedural distinctions. Firstly, under Section 2 of the DMMA, various grounds (cruelty, assault, ill-treatment, etc.) are provided for judicial pronouncement of dissolving the marital relationship, which is also called fuskh. Hence, there must be some cause as per the DMMA to get a decree of dissolution of marriage under the DMMA. However, khula can be granted to a woman without establishing any ground or proving the cause to the court. Secondly, if the grounds under the DMMA are established by a woman, then Section 5 of the said law protects her right of dower as the same shall not be affected. Whereas in khula, she has to waive or forgo her right of dower. Lastly, in terms of procedure in the case of khula, once the pre-trial reconciliation fails under Section 10 of the Family Courts Act, 1964 (FCA), the court is bound to immediately pass a decree for the dissolution of marriage. Whereas the decree for dissolution of marriage under the DMMA can only be passed after the recording of evidence under Section 11 of the FCA. Therefore, termination of marriage under the DMMA or by way of khula exists in, distinct and different legal domains with separate consequences."
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After having an overview of above principles, no cavil left to hold that "khula" and dissolution of marriage under the "Act, 1939" operate under entirely different legal systems, leading to distinct outcomes as well. 12. Since the petition at hand stems from an order of the Family Court awarding a decree for dissolution of marriage on the basis of "khula" in lieu of return of dower of Rs.50,000/- so it would be apt to restrict ourselves to the core issue relating to the true import of Section 10 of the "Act, 1964". For the purpose of ease of reference, it is reproduced hereinbelow:- "S.10. Pre-trial proceeding.-(1) When the written statement is filed, the Court shall fix an early date for a pre-trial hearing of the case. (2) On the date so fixed, the Court shall examine the plaint, the written statement (if any) and the precise of evidence and documents filed by the parties and shall also, if it so deems fit, hear the parties, and their counsel. (3) The Family Court may, at the pre-trial stage, ascertain the precise points of controversy between the parties and attempt to effect compromise between the parties. (4) Subject to subsection (5), if compromise is not possible between the parties, the Family Court may, if necessary, frame precise points of controversy and record evidence of the parties. (5) In a suit for dissolution of marriage, if reconciliation fails, the Family Court shall immediately pass a decree for dissolution of marriage and, in case of dissolution of marriage through khula, may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty-five percent of her admitted prompt dower to the husband. (6) Subject to subsection (5), in the decree for dissolution of marriage, the Family Court shall direct the husband to pay whole or part of the outstanding deferred dower to the wife." (Underlining is supplied for emphasis) From the bare glimpse of above referred provision of law, it clearly manifests that Subsection (3) makes it imperative for the Family Court to ascertain the precise points of controversy between the parties and attempt to effect compromise between them at the pre-trial stage. Subsection (5), however, postulates that in a suit for dissolution of marriage, if reconciliation fails, the Family Court shall immediately pass a decree for dissolution of marriage and in case of dissolution of marriage through "khula", it may direct the wife to surrender upto fifty percent of her deferred dower or upto twenty five percent of her admitted prompt dower to the husband. 13. The survey of law and the precedents referred by the learned Advocate General, Punjab paves a path to discover the legislative history of right of "khula". Right of "khula" of wife was identified for the first time in the jurisprudence of Pakistan in the case of Mst. BALQIS FATIMA versus NAJM-UL- IKRAM QURESHI (PLD 1959 (W.P.) Lahore 566). The relevant extract from the judgment is reproduced below:- "3. In the appeal in the suit for dissolution of marriage, we find no reason to differ with the finding of the learned District Judge that the husband was in no way to blame for the rukhsati not taking place, and, therefore, the wife was not entitled to maintenance. This finding would have finished the appeal, but learned counsel for the appellant wife raised a new point that a khula is the right of wife, that is, the wife can at any time come to Court and demand a divorce on abandonment and restitution of any benefit which she may have received from her husband. As the point was one of pure law, we allowed it to be argued. In support of his argument, learned counsel for the wife placed reliance on what is contained in a book entitled " Haquq-uz-Zaujain " written by Maulana Abul Ala Maudoodi. In this book, Maulana Maudoodi has dealt exhaustively with the nature and incidents of khula and has recorded an emphatic opinion that khula is the right of the wife. He reproduces first the verse of the Holy Quran which says: " And if you fear that they (spouses) cannot be kept within the limits of Allah there is no blame on them or what she may give up to become free thereby." Maulana Maudoodi interprets these words as meaning that the wife will be entitled
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on payment to secure her release. He then supports his inference by reference to how the Holy Prophet acted in the well known cases of Sabit Bin Kais wherein the Holy Prophet had ordered Kais to divorce his wives on their restoration of what they had received from him. The commentator also quotes an instance from Hazrat Umar wherein he had allowed divorce to a woman on payment of some small amount because the woman had absolutely refused to live with her husband. 4. Maulana Maudoodi is not only a great religious scholar but comes from the orthodox school, and his opinion, by itself, could be the basis of a further investigation with respect to the rights of a woman for divorce. But there is some other authority too which supports him. According to the opinion of Maulana Muhammad Ali expressed in "The Religion of Islam " at page 673, there is an equality between the spouses with respect to divorce. After quoting the following verse of Holy Quran, " And if you fear a breach (shiqaq) between the two, then appoint a judge from his people and a judge from her people ; if they both desire agreement, Allah will effect harmony between them, surely Allah is Knowing, Aware", and then referring to the following words, "And if they separate, Allah will render them both free from want out of His ampleness, and Allah is Ample- giving, Wise ", the learned commentator says: " This verse gives us not only the principle of divorce, which is shiqaq or a disagreement to live together as husband and wife, but also the process to be adopted when a rupture of marital relations is feared. The two sexes are here placed on a level of perfect equality. A breach between the two ' would imply that either the husband or the wife' wants to break off the marriage agreement and hence either may claim a divorce when the parties can no longer pull on in agreement. In the process to be adopted, both husband and wife are to be represented on a status of equality ; a judge has to be appointed from his people and another from her people. The two are told to try to remove the differences and reconcile the parties to each other. If agreement cannot be brought about, a divorce will follow." In the beginning of the Chapter of Khula and Mubarat, Mr. Amir Ali says: " Previous to the Islamic legislation, the wives had no right to claim a dissolution of the marriage on any ground whatsoever. In special cases only the power of divorce was expressly reserved in their favour by contract. As a general rule, neither the Hebrews nor the pre-Islamic Arabs recognised the right of divorce for women. The Koran allowed them this privilege which had been denied to them by the primitive institutions of their country." This paragraph would seem to lay down that the wife has a right of divorce, though it is true that it is not explained further in this chapter as to how this right is to be exercised. At page 519 of the same book, it is stated that so far as Shias are concerned, in case of shiqaq, arbitrator may be appointed to settle their disputes and if no settlement can be effected, the marriage ought to be dissolved. In Islamic Law by Aziz Ahmad, the Malki Law relating to khula is thus explained: In Bibi Sogra v. Muhammad Sayeed (40 I C 672), Roe, J. had expressed the opinion, after reference to Muhammadan Law by Mr. Amir Ali, that if the wife wants to obtain a divorce without any justifiable cause, she has simply to abandon her claim to the settlement in order to secure a dissolution of her marriage." 4. The question is obviously an important one. We accordingly refer the following question to a Full Bench :- Whether under the Muslim Law the wife is entitled to khula as of right ? As we are making a reference in the appeal arising out of the dissolution of marriage, the Letters Patent Appeal in the suit for restitution of conjugal rights will have to remain pending till this appeal is decided. OPINION OF FULL BENCH KAIKAUS, J.---Briefly the facts leading to this reference are that the simple nikah ceremony of the appellant, Mst. Balqis Fatima, and the respondent, Mr. Najm-ul-Ikram, took place in Lahore on the
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7th of October 1949. Before rukhsati could take place, disputes arose between the families of the parties so that the spouses never lived together. On the 2nd of January 1952 i.e., about two, years and three months after the nikah ceremony, the appellant filed the suit, out of which Regular Second Appeal No. 39 of 1957 arises, claiming dissolution of marriage, on the two following grounds :- (1) That the husband had failed to provide maintenance for a period of more than two years ; (2) that the husband was associating with women of evil repute. While this suit was pending, the husband too filed a suit for restitution of conjugal rights. The two suits were consolidated. The trial Court found that the husband had failed to provide maintenance to the wife for a period of more than two years, and decreed the suit for dissolution of marriage. The suit for restitution of conjugal rights was dismissed because of the decree for dissolution. On appeal by the present respondent, the learned District Judge found that the wife was not entitled to maintenance because it was she and not the husband who was responsible for rukhsati not taking place. As this was the only ground on which the suit for dissolution had been decreed, the learned District Judge accepted the appeal and dismissed that suit. However, he was of the opinion that the relations between the parties had become so strained that it would not be proper to pass a decree in favour of the husband for restitution of conjugal rights. He, therefore, dismissed the other suit also. 2. The wife filed an appeal against the dismissal of her suit for dissolution of marriage, while the husband preferred an appeal in the suit for restitution of conjugal rights. The appeal of the husband was dismissed in limine by Yaqub Ali, J. and the husband has filed L. P. A. No. 26 of 1957 against that judgment. The second appeal of the wife (Regular Second Appeal No. 39 of 1957) and the Letters Patent Appeal of the husband both came up for hearing before me and Shabir Ahmad, J. In the Regular Second Appeal we found no reason to disagree with the learned District Judge on the question as to who was to blame for the rukhsti not having taken place and we were of the opinion that the wife was not, under the circumstances, entitled to maintenance. This finding would have been sufficient for the disposal of the, appeal, but a new point was raised before us. It was contended that khula is the right of the wife, i.e., the wife can at any time come to Court and demand the grant of divorce on restitution of any benefit which she may have received from the husband. This was a…
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