2010 PLP 58 (CLC)

FAISAL ARAB, J.

The petitioners of these two petitions are real brothers whereas respondent No.1 of these two petitions are real sisters. In the third week of April, 2005 both the sisters married to the two brothers. Hardly a year passed that their relations reached a point that both the sisters had to leave their matrimonial homes and return back to their brothers' house. They then in the year, 2006 filed suit for dissolution of marriage by way of "Khula" and return of dowry articles. The suits were decreed and Khula was granted.

2. These two petitions have been filed by the two brothers against the said orders passed by the Family Judge, Karachi (East) in Family Suit No.1865 of 2006 and Family Suit No.1404 of 2006 granting Khula to the two sisters.

3. The learned counsel for the petitioner at the very outset argued that in order to obtain a decree of Khula from the Court of their own choice, the two sisters filed suits for dissolution of marriage by giving address of Gulistan-e-Jauhar that falls within the limits of District (East), Karachi whereas their actual place of residence is in Nazimabad, which falls within the limits of District (Central), Karachi. The second ground that has been urged by the learned counsel is that the question whether Court can grant Khula was sub judice before the Federal Shariat Court, which though has decided the matter but an appeal against such decision has been preferred and therefore this Court may not proceed with the matter until the Shariat Appellate Bench finally decides the pending controversy on "Khula".

4. In support of his first contention, that suits for dissolution of marriage were not filed in the Courts within those jurisdiction the two sisters reside, the learned counsel for the petitioners has referred to the address given on the title of the suit in which the address has been shown to be of Gulistan-e-Jauhar whereas in the Nikahnama the place of residence of the two sisters is of Nazimabad. The learned counsel further states that after obtaining preliminary decree in the first case the letter to reconciliation committee was written at the same address of Nazimabad that was given in Nikahnama which clearly shows that the place of residence of the two sisters was always Nazimabad and never been in Gulistan-e-Johar as was shown in the plaint.

5. In reply to the first contention, the learned counsel for the respondent No.1 has argued that the respondent No.1 has two brothers, one living in Gulistan-e-Jauhar and the other in Nazimabad and at the time of filing of the suit the two sisters were living with their other brother who lives in Gulistan-e-Jauhar therefore there was no misrepresentation, fraud or any ill intention in showing Gulistan-e-Jauhar's address as their place of residence.

6. It is not the case of the petitioners that the residential address that was shown on the plaints was of someone else and not of the two sisters or their brother. There is no categorical plea in this regard in the written statements that two sisters were not residing at the address of Gulistan-e-Jauhar. Mere a plea has been taken that the Court has no jurisdiction, which would not be enough to hold that the Court in which suit was filed had not jurisdiction to try the suit. Furthermore, now that decision has been finally given on merits and nothing was brought on record to establish that Gulistan-e-Jauhar address was not the place of residence of the two sisters, what needs to be examined is whether there was any legal infirmity in the decisions. If there is no legal infirmity then their validity cannot be doubted on a vague plea that suit was filed before a Court having no jurisdiction which is not supported by clear and unambiguous material.

7. Insofar as the merits of the case are concerned, the case of the two sisters is that after contracting marriage, the petitioners have not only been abusing them but they have also been physically harming them on petty issues. Thus they blamed their husbands for humiliation and maltreatment which left no other alternative for them but to seek "Khula".

8. During pendency of the proceedings the operation of the impugned judgment was stayed till the disposal of the petition filed by the petitioner before the Federal Shariat Court. The Federal Shariat Court vide its decision dated 28-5-2009 disposed of the petition, the findings thereof are very clear, hence there is now no legal impediment to decide these petitions.

9. In the case before the Federal Shariat Court the case of the petitioner was that subsection (4) to section 10 of the Family Courts Act, 1964, is repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (peace be upon him).

10. The case of the petitioners before the Federal Shariat Court was that "Khula' can only be granted to the wife if the husband consents to it and no Court has the authority to order dissolution of marriage by way of Khula if the husband does not agree to it. On this issue it is worthwhile to reproduce following excerpts from the judgment of the Federal Shariat Court given on 28-5-2009 in Shariat Petition No.1/K of 2007:

(11) "Hence we may mention that although the marriage has a moral, legal and spiritual bearing on the parties and is publicly sanctified or a "Khutba", in the presence of witnesses and is rightly considered a Sunnah of the Holy Prophet (peace be upon him), it is not a sacrament; it is not irrevocable but; in essence, it is civil contract between husband and wife which creates mutual rights and obligations. This contract is a life long commitment, meant to last happily for the whole life between husband and wife, as hinted at by the Qura'nic Verse, calling it "a firm pledge" (4:21). The main purpose referred to by another Qura'nic Verse (30:21) is love, peace and tranquility and therefore both the spouses are expected and required to maintain cordial, harmonious and loveable relations. For this purpose various instructions have been given by the Holy Qur'an. It has ordained "Live with your wives gracefully" (4:19). In continuation of the same it has highlighted the importance of tolerance and peaceful coexistence, it says: "if you dislike them in any manner, it may be that you dislike something in which Allah has placed much good" (4:19). (12) Both the spouses have mutual rights and obligation and, as a matter of right, must enjoy the same, having regard to the moral, social and ethical values, as has been unambiguously advised in the verses mentioned herein above. (13) However, there are always ups and downs in the mutual relations between the spouses. At time the relations become so strained that the spouses feel unable to maintain a happy peaceful union within the limits prescribed by Almighty Allah and His Messenger (2:229). In such circumstances it has been directed that:-- "If you fear a,breach between the two (i.e. husband and wife), appoint an arbitrator from his people and an arbitrator from her people; if they both want to set things right Allah will bring about reconciliation between them.- Allah is All-Knowing, All-Aware" (4:35)." . The arbitration to bring about peace between the spouses may not succeed. The reconciliation efforts may fail altogether and the spouses, resultantly, may come to a dead lock. Then naturally both the spouses are allowed to terminate the contract entered into earlier by their mutual consent. According to Islamic injunctions the marital contract,' in circumstances, can be dissolved either by the husband arbitrarily, on his own initiative, or at the instance of the wife, on the basis of Khula, or by mutual agreement. In all these options there are certain conditions to be followed. However, the spouses have been reminded to keep in mind that both divorce and "Khula" are most undesirable options and are allowed only when they genuinely come to the conclusion that continuation of their union is harmful, making them unable to perform their mutual obligations amicably enough to live within the bounds prescribed by Almighty Allah The Holy Prophet (peace be upon him) while referring to Divorce is reported to have said that the most detestable of lawful things in Allah 's view is divorce. (14) Be that as may, a marriage may be dissolved not only by Talaq (divorce) which is the arbitrary act of the husband, but also by mutual agreement of the spouses which is called "Mubarat". Likewise it can be dissolved at the instance of the wife in which case she gives or agrees to give a consideration to the husband for her release from the marriage tie. Termination of the marriage by way of Talaq or Khula are the unanimously recognized ways of the dissolution of marriage and continuously being followed since the period of Holy Prophet (peace be upon him) till date, whenever occasions demanding the same have arisen. Normally, extra judicial divorce is preferred in Islam to save the spouses from unnecessary litigations. Islam rightly expects the Muslims to be God fearing responsible and mature enough to act wisely and judiciously. However, all people are not alike. The aggrieved spouses may not be reasonable. Therefore, in this connection, a question regarding the exercise of the right of "Khula" by the wife has been agitated to the effect that whether dissolution of marriage when asked, at the instance of wife can be decreed by a Qazi himself or even then also, it would be subject to the approval of her husband. (15) The majority of learned counsel for petitioners as well as of the Jurist Consults contended that dissolution of marriage by way of Khula can be effected only by an offer from the wife to compensate the husband if he releases her from his marital tie, and acceptance by the husband of the offer. In their opinion a Qazi before whom prayer for dissolution of marriage is made is not authorized to decree in her favour if the husband is unwilling to accept the offer. This means that the husband has an upper hand in the matter throughout and the wife unless allowed and divorced by the husband, or her demand for Khula before a Qazi, has still to continue in his wedlock forever. The proviso of section 10(4) of the Family Courts Act, 1964 has made` it binding on the Court to pass a decree in case reconciliation fails at pre-trial stage without recording the evidence in the matter which is against the Injunction of Holy Qur'an and the Sunnah of the Holy Prophet (peace be upon him) as without producing any evidence in respect of liking and disliking on the basis of which the compromise is refused during the pre-trial proceedings the Family Court is bound to pass a decree for dissolution of marriage." (18) The word "Khula" literally means "to put off". In the context of verse which states "They are garments 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" ..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 not 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 considered responsible if she cannot bear the mental agony in this state of affair and put an end to her life by setting herself on fire or adopt any other method for committing suicide, which is our normal observation, off and on, in different parts of the country? Who will stop or what will prevent her to administer poison to her husband if she finds herself entangled in a "holy dead lock"?.........As mentioned above "Justice for all" is the essence social teachings of Islam. No one is to be harmed. It has been declared that "Let no harm be inflicted nor suffered in Islam". The Holy Qur'an has repeatedly stressed the husband's duty to keep the wife with kindness. It has been directed to keep them in good fellowship or let them go with grace (2:229). At another place it has been asked the husband to "retain them in kindness or set them free with kindness" (2:231). The husbands have been ordered not to retain them (unjustly) for injury and not to exceed the limits (2:231). "Treat them with grace and kindness" (4:19) is a command and it has been obeyed in letter and spirit. These pieces of command are not mere instructions or admonitions to be left to the sweet will of the husband only. An Islamic State is bound to implement them through suitable legislation so that it is ensured that none of the spouses is harmed or treated unjustly. It is duty-bound to constitute proper judicial forums where every one gets justice and where grievances are properly redressed. Obviously Islam does not intend to force a wife live a miserable life, in a hateful unhappy union, forever. If she is unhappy and reconciliation fails, she should be entitled to get relief whatsoever. This is what justice demand. This is referred to in the verse. "Women shall have rights similar to the right against them, according to what is equitable" (2:228). They (Men) can directly exercise their right of divorce without any recourse to Court of law whereas in case of `Khula' the wife has to seek indulgence of the Court, if her husband does not agree to her demand of `Khula'. The course of judicial process provides an opportunity to the wife to thoroughly consider pros and cons of her demand for `Khula'. Both wife and husband are provided opportunity to consider .and reconsider their course of action and both have to bear financial liability if they insist on separation. No one has any superiority over the other in respect of their rights and responsibilities. The upshot of the above discussion is that there is no specific verse or authentic Ahadith that provides a bar to the exercise of jurisdiction by a competent Qazi to decree the case of Khula agitated before him by a wife, after reconciliation fails. As discussed above in detail, the Ayaat and Ahadith relied upon by the petitioners neither specifically relate to the issue of Khula or to the lack of authority of a Qazi duly authorized by an Islamic State to resolve the disputes between husband and wife. The interpretation of the said Verses and Ahadith is also not unanimous.

11. From the above discourse in the judgment of the Federal Shariat Court, it is evident that the wife has a right to seek Khula from her husband through a Court of law in case the relations are strained to such an extent where they become irreconcilable. In the present case the two sisters have expressed their irretrievable position that they could no more live in peace and harmony with the petitioners and on such basis the Family Courts have granted Khula to them. Therefore, this Court finds no legal justification to interfere with the findings of the Courts below: Consequently, both the petitions are dismissed in limine. S.A.K./M 186/K Petitions dismissed.