2013 PLP 2616 (YLR)

MRS. IRSHAD QAISER, J.

Through this constitutional petition, the petitioner Abdul Rashid has challenged the order/judgment of Judge Family Court-VII, Abbottabad dated 8-1-2011, whereby the execution petition filed by the petitioner was dismissed while the objection petition filed by respondent Mst. Shahida Parveen was allowed by holding that the petitioner decree-holder is not entitled for any benefit in lieu of Khullah.

2. The brief but relevant facts of the case are that petitioner filed a suit for restitution of conjugal rights vide Case No.315/FC dated 19-9-2007. Respondent wife contested the suit by submitting her written statement and also for getting her counter claim. After fulfilling the legal formalities the trial Court passed a decree for restitution of conjugal rights in favour of petitioner and dismissed the counter claim of respondent wife. Feeling aggrieved by the judgment and decree dated 16-12-2007 respondent No.1 filed an appeal, whereby appellate Court dissolved the marriage of parties on the basis of cruelty along with maintenance for 'iddat' period and dismissed her rest of the claim. Against this judgment and decree both the parties filed Writ Petition No.201 of 2010 and Writ Petition No.343 of 2010 and vide judgment and order dated 26-1-2010 this Court convert the decree of dissolution of marriage on the basis of Khullah instead of cruelty.

3. Later on petitioner filed an execution petition in order to recover Zar-e-Khullah i.e. seven tola gold, Rs.80,000, sale consideration of house sold by respondent with two Kanals of land and other benefit received by her in lieu of dower. Against the petition, respondent filed objection petition on the ground that petitioner is not entitled for Zar-e-Khulah. After hearing the arguments, the trial Court vide order dated 8-1-2011 dismissed the execution petition while the objection petition filed by respondent was allowed. Hence, the present writ petition.

4. We have heard learned counsel for the parties and perused the record with their assistance.

5. Now the question for determination is that whether the wife (respondent) is entitled to dissolution of marriage on Khulah only on restoration of what she received in consideration of marriage if the Judge apprehends the parties will not observe the limits of God?.

6. Before discussing the case on its merit it would be proper to reproduce the relevant portion of the order of this Court passed in Writ Petition No.201 of 2010 dated 26-8-2010 vide which the dissolution of marriage on the basis of cruelty was converted into dissolution of marriage on Khullah, which is as under:-- "A perusal of record would show that respondent appeared to be so adamant that she was not even ready to see the petitioner, as observed by the learned lower appellate Court, coupled with pleadings/evidence, as well as her verbal assertions, as made before the lower Court. On the other hand the learned appellate Court has held that she could not prove the ground of cruelty and yet dissolved the marriage. Since the factum of cruelty could not be established, but at the same time parties cannot be compelled to live in a hateful union, therefore, Mst. Shahida Parveen is entitled to dissolution of marriage eon the basis of khulah instead of dissolution of marriage on the ground of cruelty. No case for grant of past maintenance has been established by Mst. Rashida Bibi during the course of evidence and as such, it was rightly declined by the Court below."

7. In the above noted order no specific directions/order regarding the return of benefit and dower etc. was passed. It is also admitted fact that the dower was already paid to respondent wife.

8. In this regard we have to seek guidance from Holy Quran which is a complete code of life. First reference is made to Veres 228, 229 and 230 of Surah Baqura.

9. The principles for grant of Khullah are quite authoritatively laid down in the Illustrative judgment in Khursheed Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97), wherein after reference of a number of authorities and the verses from Holy Quran specially Verse Nos.2.228, 2.229, 2.230 and 4.19 and 20 from Holy Quran it is laid down as follows:-- "Secondly, it confers a right and privilege on the wife to seek dissolution of marriage on khulah is thus a right conferred on the wife. In the prior Verse 2.228 the Holy Quran itself mention women have right against men similar to those that men have against them, according to the well known rule of equity."

10. However, such right is circumscribed by the requirement of the Court being satisfied that the spouses cannot live as husband and wife within the limits of Allah. A woman is not maintaining the limits ordained by Allah is her neglecting or avoiding of her performance of her duties toward her husband as well as not obeying at all. Likewise the husband failing to provide any maintenance to his wife, is failure to keep the limits prescribed by the Almighty Allah. The limits prescribed by Allah would mean the direction regarding a happy social life. Such view find support from the judgment Syed Dilshad Ahmed v. Mst. Serwat Bi (PLD 1990 Karachi 239), where the learned Judge with reference to Ibn Rushd Bidayatul Mujtahid Observed:-- "The Verse thus means if there be such dislike between the husband and wife that it becomes difficult to lead their life in mutual love and happiness the wife may, on payment of compensation obtain khulah from the husband. That is Khulah, is permissible when there is no possibility for happy union between the couple and there is apprehension that due to their extreme differences they shall not be able to live in accordance with the dictates of shariah. However, if the fault lies with the husband, in the fulfilment/obligation to his wife, the acceptance of compensation for khulah by him is forbidden in Sharia. The propriety of khulah is established from the Verse in the event of such a difference between the couple that their living together becomes impossible. According to Ibn Rushd, the philosophy of Khulah is that it is a right within the powers of wife similar to the husbands right of divorce. Thus when life became troublesome for the wife she may make use of her right of getting khulah, effected likewise, when some trouble arises for the husband due to the wife, he may make use of his right of divorce." Guidance is also sought from the judgment in case of Muhammad Rafi versus Atta Ullah Kausar and others reported in 1993 CLC 1364.

11. Keeping in view the facts and circumstances of the case, and the direction laid by the Holy Quran, in our view the principle is that wife can buy her freedom upon payment of compensation and in the event of mutual agreement, parties can agree upon any figure. However, once the Court is approached, the command of shariah is very clear about the extent of compensation money. It cannot be fixed at a figure higher than the dower amount and return of benefits received by wife from her husband. However, in case fault is found on the part of husband, the Court can reduce the amount of compensation and may even grant divorce for Khulah without any compensation at all. We find support for such view from the judgment in Parveen Begum v. Muhammad Ali (PLD 1981 Lahore 116), Mst. Zahida Bi v. Muhammad Maqsood (1987 CLC 57), Shagufta Jabeen v. Sarwat Bi (PLD 1990 Karachi 239) and Dilshad v. Musarrat Nisar (PLD 1991 SC 779).

12. It is admitted fact that after the marriage the respondent lived with petitioner for about 16 years and performed her marital obligation and in this way she spent, in agonies, sufficient long, precious and prime time of her young age with the petitioner. He created such circumstances which compelled her to knock the door of the Court for dissolution of marriage and as it is held by the superior Court that in such a situation the life spent by wife with husband can be taken as consideration for khula. Moreover, it is true that dower was already paid to the respondent but no order has been passed by this Court for return of benefit and dower etc. while converting the dissolution of marriage in to Khulah. Guidance is also sought from Verse No.20, 21 of Surah-i-Nisah.

13. The learned counsel for the petitioner has not been able to point out any misreading or non-reading of evidence amounting to miscarriage of justice so as to warrant interference of this court under the constitutional jurisdiction. In the circumstances no case is made out for interference and the petition is accordingly dismissed with no order as to cost. AG/385/P Petition dismissed.