P L D 2013 Sindh 209 (PLP)

SYED MUHAMMAD FAR00Q SHAH, J.

Petitioner sought declaration that his marriage with the respondent No.1 still subsists and he may be allowed to rejoin Mst. Fozia (respondent No.1) as his wife, after solemnization of fresh "Nikah", without intervention of third person and the ex parte judgment dated 7-11-2009, whereby the learned Trial Court dissolved the marriage by way of "Khula", may be set aside.

2. Relevant precised facts leading to the instant petition are that family Suit No.23 of 2009 filed by the respondent No.1 against petitioner, decreed by ex parte judgment and "Khula" was granted by the learned Family Judge in lieu of dower. It is submitted that both spouses now settled their dispute for welfare of their two children and decided to reunion. It is averred that identical issue has already been decided by this Court in favour of the petitioner in the case of Gulzar Hussain v. Mst. Mariam Naz (2000 MLD 447). The penultimate para of the mentioned citation is reproduced herein below:-- "In the circumstances the pronouncement of Khula by the Court would amount to a single divorce) therefore, until the third divorce takes place the petitioner would be at liberty to marry his wife again, consequently the parties can rejoin as husband and wife on the solemnization of Nikah without the intervention of third person. In the instant case there has been one divorce of Khula pronounced by the Court which was also subject to compensation to be made by the respondent which compensation was neither made nor accepted by the parties, and parties have now consented to live as husband and wife therefore, in view of the authenticated observations made in the above books by learned scholars, judgment and decree of the Court in respect of dissolution of marriage between the parties on the basis of Khula is annulled/set aside, consequently the petition stands disposed of:"

3. Notice issued to the respondent No.1 returned served. In counter affidavit respondent No.1 has also shown her willingness to rejoin the petitioner after performing Nikah. Respondent No.1 has stated on oath that being 'sui juris' and mother of two minor children, she can well understand the loss and gain to her life, wants to remarry with the petitioner without any coercion but with her own free will and accord. Further stated that facts depicted in the instant petition are true and correct and that prayer of her husband (petitioner) for reunion in as much as she is willing to live again as wife of petitioner within the limit of Allah Almighty, after performing the fresh Nikah with him. She has further stated that suit for dissolution of marriage by way of "Khula" was filed due to misunderstanding on instigation of her brother and father under duress, coercion and misrepresentation and now she has settled the dispute and decided to rejoin her husband for the sake of welfare, betterment and upbringing of their two minor children.

4. It is inter alia contended by learned counsel for the petitioner that neither any occasion has provided to remove the differences, as ex parte proceedings have been initiated by the learned Family Judge/nor the chance of pre-trial for reconciliation had been given as the suit was filed due to misunderstanding and there were every possibility of reconciliation in between the parties. It is next contended that in view of case-law cited above, "Khula" be considered a single divorce as husband (petitioner) never accepted it, hence such dissolution of marriage be treated as 'Talaq-ul-Bayn', therefore, according to learned counsel in such like cases 'HALALA' (marriage with third person) is neither a condition precedent nor the decree of "Khula" is a hurdle in the way of reunion, subject to solemnization of a fresh Nikah as the dowry articles yet has not been exchanged. He further contended that suit for dissolution of marriage has been filed by the respondent No.1 on instigation of her relatives, under coercion and misrepresentation.

5. The issue for determination involved in this petition is that as to whether after grant of 'Khula' in lieu of dower by Family Court, the petitioner and respondent No.1 can rejoin without 'HALALA' (intervention of third person), on performance of fresh Nikah? The reported cases cited by the learned counsel for the petitioner are squarely applicable in circumstances of present case and are sufficient to resolve the question/dispute.

6. A Division Bench in the case of Fazal-e-Subhan v. Mst. Sabreen (PLD 2003 Pesh 169) held that "Khula" is a repudiation with consent and at the instance of wife, in which she agree to give a consideration to husband for her release from the marital tie and it is not obligatory on the wife to remarry third person before entering into remarriage tie with her first husband and same is the case here, the remarriage with same husband of-course would be subject to performance of another 'Nikah'. The learned Bench has drawn such interpretation from "Bhihshti Zaivar", authored by Moulana Ashraf Ali Thanvi, Marhoom and Fatwas (Islamic verdicts) of Mufti Saifullah Haqani of Jamia Darul Uloom Haqania Akora Khattak, wherein it is stated that: and that:--

7. In the case of Muhammad Ayoub Khan v. Mst. Shehla Rasheed (PLD 2010 Karachi 131) similar question had arisen and Madam Rukhsana Ahmed, J (as the then She was) elaborately dilated on the issue in discussion and held 'Khula' would amount to single divorce and the parties can rejoin after solemnization of Nikah. In concluding para it was held that:-- "For the foregoing reasons, while keeping in view the authenticated observations made by the learned Scholars as well as respectfully following the decision of this Court, hold that pronouncement of Khula by the Court would amount to a single divorce until the third divorce takes place. The petitioner would be at liberty to re-marry his wife and the parties can rejoin as husband and wife on the solemnization of Nikah without intervention of third person. Resultantly, Judgment and Decree of the Court in respect of dissolution of marriage between the parties on the basis of Khula is declared annulled and is therefore set aside. In view of the above, this petition stands disposed of".

8. The aforementioned observation of the learned Single Bench based on Najmua-e-Qawaneen-e-Islam Vol. II, Qanun-e-Talaq by Justice Tanzeel-ur-Rehman, which stipulates that

9. In renowned book 'Hedaya' by Charles Hamilton, 1975, at page 107 it is provided that in a case of irrevocable divorce i.e. before three divorces, the husband is at liberty to marry his wife again, either during her 'Idat' or after its completion, as the legality of the subject still continues, such legality depends upon a third divorce; and accordingly until a third divorce takes place, the legality of the subject continues.

10. The relevant provision of Muslim Family Laws Ordinance, 1961 provides approved mode of divorce by one 'Talaq' and this mode is obligatory for husband to divorce by one mode of 'Talaq' other than 'Talaq-e-Ahsan' so the couple could remarry without any intervening marriage except where the wife has been divorced thrice and third divorce has become effective and only in that case they cannot remarry without 'HALALA'. On the contrary, the plain reading of section 7(6) of the Muslim Family Laws Ordinance 1961 made all divorce revocable; therefore, it would be advantageous to reproduce the relevant provision as under:-- SUBSECTION (6) of Section 7 Nothing shall debar a wife whose marriage has been terminated by "Talaq' effective under this section from re-marrying the same husband, without an intervening marriage with a third person, unless such termination is for the 3rd time so effective.

11. In view of whatever mentioned above, in light of the case-law (supra), 'FATWAS' of jurists and applicable provisions of statutes, the prayer of petitioner is allowed for reunion after revival of 'Nikah', particularly the wife (respondent No.1) is willing to live again with the petitioner and to perform her matrimonial conjugal rights within the limits ordained by Al-Quran and Sunna. The petition is allowed in the terms indicated above. MH/D-16/K Petition allowe