P L D 1988 Karachi 602 (PLP)

(1) That the plaintiff was married to the defendant about 6 years back according to Shariat when she was minor. (2) That at the time of the marriage, the parents of the plaintiff . gave her pair of gold ear‑rings weighing 1/2 tola. The dower . was settled at Rs.1,000 which remains unpaid. (3) That after the marriage, the plaintiff went and lived with the defendant who behaved properly with the plaintiff but after 6 months the defendant changed his attitude and started maltreating the plaintiff now and then without any reasonable cause. (4) That immediately after the marriage, the plaintiff came to know that the defendant was jobless, depending on begging as a result of which the defendant snatched the gold ear‑ring); from the plaintiff and sold away the same in spite of the protest raised by the plaintiff. (5) That the defendant had weak sexual power but after about 6 months of the marriage the defendant lost completely his sexual energy and is impotent having no possibility of having an issue from the plaintiff who has never been pregnant. (6) That the plaintiff tolerated the maltreatment, humiliation, non‑maintenance and other difficulties yet the defendant treated ,the plaintiff as .a burden on him and lastly about 3 years back drove out the plaintiff from his house who came and lived with her parents at Ratodero and is still living with them. (7) That the defendant since last three years has failed to maintain the plaintiff and has never visited her. (8) That the hatred between the parties has reached to such an extent that they cannot live as wife and husband within the limits of God as such if the plaintiff cannot succeed on other grounds, she claims 'Khula' divorce and is willing and prepared to return what she has received from the defendant. (.9) That the cause of action accrued about 3 years back when she was driven out of the house by the defendant and is still accruing. (10) That the plaintiff resides at Ratodero as such this Hon'ble Court has jurisdiction to try this suit. (11) That the fixed court‑fee of Re.l is paid. (12) That the plaintiff prays for judgment and decree as under:‑ (a) The marriage of the plaintiff with the defendant be dissolved. (b) Costs of the suit be awarded to the plaintiff. (c) Any other relief be awarded to the plaintiff to which she is deemed entitled." The petitioner further deposed before the learned Family Judge "About 7 years back I got married with the defendant abovenamed. The dower was fixed at Rs.1,000 which remained unpaid. I went and lived with defendant for about 3 years. I was given gold ear‑rings of half tola by my parents which were snatched by the defendant. Just after my marriage I came to know that the defendant was jobless man and depending on begging. On my protest, he beat me and after 3 years of my marriage he drove me out of his house and since then I am living in Ratodero. I also found that the defendant was aged and impotent. Since separation from the defendant he has failed to maintain me or visit me. My prayer is that my marriage be dissolved with the defendant." Her witness Syed Bhooral Shah deposed: "I know the parties. They are wife and husband. The plaintiff is residing in Ratodero for the last 3 years ....The plaintiff is residing with me . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The plaintiff is my relative. The plaintiff made complaint before me that the defendant used to maltreat her and also was impotent. Since last three years t the defendant has neither maintained the plaintiff nor visited her."

9. Let me now state the legal position of the several allegations of the petitioner in relation to the petitioner's right to seek dissolution of marriage by judicial separation.

10. It has been alleged by the petitioner that she has been turned out of the house by her husband who has failed to provide maintenance to her for the last three years. The basis of the husband's liability to maintain his wife is not merely marriage but it arises out of the wife's surrender of her person to her husband. In other words, when the wife puts herself under the control of the husband, her maintenance becomes obligatory on him. But there is an exception to this general rule: If the husband, due to his own shortcomings, is unable to keep his wife with him, e.g. he is incapable of having sexual intercourse with her, or does not wish to keep the wife with him for his own reasons, the wife's right of maintenance will not be affected. Furthermore, if the dower is prompt or it is payable with a certain period and that period has expired, and the dower remains still unpaid, and for that reason the wife refuses to live with her husband, her refusal will be considered to be valid, and her right to maintenance shall not be affected, whether marriage has been consummated or not. Her right to maintenance shall also not be affected if the wife refuses to return to the house of her husband or live with him for some valid reason e.g. his cruelty. Under section 2(ii) of the Pakistan Dissolution of Muslim Marriages Act, 1939 a wife has been given the right of claiming dissolution of marriage, inter alia, on the ground that the husband had refused or neglected to provide maintenance to her for the period of two years. The petitioner's allegation as to non‑providing of maintenance by the respondent for 3 years has gone unchallenged. The petitioner, as alleged, was minor when she was given in marriage by her father to respondent No.l. Under the traditional Islamic Law, if a Muslim minor girl has been married during her minority by the guardian, the minor has got the right on attaining' puberty (physical majority) to repudiate such marriage. According to the Hanafi school of law, barring Adu Yusuf, there is consensus of opinion that the marriage of minor boys or girls, got contracted during their minority by their guardians, other than their fathers or grandfathers, may on their attainment of majority, be repudiated by them. Refer Qazi Khan: Fatawa, Vol. I, Kitab _al‑Nikah,, p.166:

12. In undivided India till March 17, 1939 the marriage contracted by the father or the grandfather as guardian could not be got annulled by the exercise of the option of puberty. But under the Dissolution of Muslim Marriages Act (VIII of 1939), .provisions of Muslim Law relating to suits for dissolution of marriages by women married under Muslim Law were consolidated and clarified. A girl got contracted into marriage by her father or grandfather or other guardian was treated at par and declared entitled under subsection (vii) of section 2 to obtain decree for dissolution of marriage from Court through her exercise of‑option of puberty. In the result, whatever. Distinction in connection with the right of "option of puberty" in marriages got contracted by fathers, grandfathers and other guardians had been recognised in the earlier decisions of the Indo‑Pakistan Courts disappeared by virtue of this Act which is being fully implemented since then. 13: Thus, under the law. of Pakistan too, a girl contracted in marriage even by her father or grandfather during minority has an option on attaining puberty, either to accept the marriage or repudiate it and to get thereby a decree of dissolution of her marriage through a competent Court of Law.

14. As held in Muhammad Amin v. Surraya Begum P L D 1970 Lah. 475 there are, however, three pre‑conditions for exercising option of puberty, namely, the performance of marriage during minority with the consent of the guardian, its non‑consummation, and its repudiation between the age of 16/18 years.

15. The option of puberty of a virgin girl shall, therefore, laps if she, on attaining her puberty, permits her husband to cohabit with her or if she by an act or omission expressly or impliedly makes it evident that she does not repudiate the marriage contract. In the case before me the petitioner has consummated her marriage and has, therefore, lost her right of exercising option of puberty

16. The petitioner alleges that her ornament viz. ear‑ring of half a tola gold given by her father to her at the time of marriage was snatched away from her by the respondent husband.: The disposal by a husband without the wife's consent, of her property, not for her benefit but for his own use and thereby depriving. her of her property would attract the provisions of clause (viii)(d) of the Dissolution of Muslim Marriages Act, 1939. Even if the wife's property is disposed of to meet some pressing need of the husband it does not legitimize the disposal and the provision of clause (viii)(d) of the Dissolution of Muslim Marriages Act is still attracted to that. situation. The evidence led by the petitioner,. as to the unauthorized disposal of her property has not been rebutted by the respondent.

17. It is also alleged by the petitioner that the respondent was sexually weak at the time of marriage but later on became impotent. Under Islamic law the woman, who has been married in accordance with the law of Sharia'h, may obtain a decree of dissolution of marriage through the Court on the ground that her husband at the time of marriage contract was impotent and he continues to be so. Admittedly the respondent No.l was not impotent at the time of marriage. His subsequent impotency will not entitle the petitioner for the dissolution of her marriage on the ground of alleged impotency.

18. The petitioner, however, claims dissolution of her marriage on the ground of Khula'. This requires consideration. Khula' is derived from the word (`'C '') (Khalun) which literally means extracting out one thing from another. Technically, .the word "Khula'a", on the line of Naza'a, means "taking out" or "taking off" for instance, '!Khula'a al‑Thawb means "he took off the clothes". The Khula' in Shariah, means that a husband after accepting a compensation from his wife renounces over her his rights under the marriage contract.

19. It may be noticed that there is a difference between Khula and Talaq. A' divorce is pronounced by the husband at his own initiative. A Khula' is given at the instance of the wife when they cannot maintain the limits of Allah. In divorce the husband becomes liable for immediate payment of the wife's dower, if deferred, or still unpaid, but in Khula' it is the. wife who makes a: payment to the husband in order to induce him to release her from the marriage‑tiel and the consideration may consist of the dower itself.

20. The Privy Council in, probably, the first leading case, Moonshee Bulzoor Rehman v. Lateefunnissa 8, M.I.A. 379 observed that "A divorce by Khula' is a divorce with the consent and at the instance of the wife and in which she, gives or agrees to give a consideration td the husband for her release from the marriage‑tie. In such a case the terms of the agreement are matters of arrangement between the husband and the wife, and the wife may, as consideration, give up her dower and other rights or make any other arrangement for the benefit of husband". 21: It is now well‑settled that if the Court is satisfied that the husband and the wife on account of disagreement between them cannot live together in accordance with the limits prescribed by Allah, it F shall be competent for the Court to order the husband to pronounce Khula'.

22. The basis and the origin of the validity of Khula' is the Qura'nic verse: "A divorce is only permissible twice; after that, the parties should either hold together on equitable terms or separate with kindness. It is not lawful for you (men) to take back ,. any of your gifts (from your wives) except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there. is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah, so do not transgress them." (II: 229). .

23. The limits prescribed by Allah in this verse mean the Injunctions of Islam regarding a married life. Same is the assertion' of Ta us as well: (See A1‑Jassas; Ahkam al‑Qur'an, Cairo 1335 A.H.) Vol. III, page 390.

24. The verse thus means, if there be such a dislike between the husband and the wife that it becomes difficult to lead their life in mutual love and happiness the wife may, on payment of compensation, obtain Khula' Pram the husband. That is, Khula' is permissible when there is no possibility for happy union between the couple and there is the apprehension that due to' their extreme differences they shall not be able to live in accordance with the dictates of Shari'ah.

25. In connection with the validity of Khula' the incident of Khula' of the wife of Thabit b. Qays b. Shamas forms the basis, which has been referred to by most of the traditionalists (Muhaddiseen) Imam Bukhari, thus, has reported through Ibn'Abbas that the wife of Thabit b.Qays came to the Holy Prophet and said "0' Prophet of God! I do not find fault with the good behaviour and beliefs of Thabit b. Qays but I do abhor ingratitude (for hating ' my husband) in the state of Islam". The Prophet said, "Would you give the garden back to him?" She said, "Yes". The Prophet said to Thabit b.Qays, "'fake back the garden and pronounce one divorce to her" (A1‑Bukhari, Al‑Sahih, Karachi, Kitab‑al‑Talaq VoI.II, pp.94‑95). Imam Bukhari, in another narration; has used the words ( Amrahu Fakarkuhma ), the Prophet ordered him; then, he separated her, instead of ( Talkuhma Tatlikat ) i.e. (the Prophet ordered) "pronounce her one divorce". Besides, the names of the wife of Thabit b.Qays (one Habibah and the other Jamilah) have been mentioned in different versions of the tradition. Ikramah has stated that her name was Jamilah. In the report by A'ishah, the lady is named as Habibah bt. Sahl which has been recorded by Abu Da'ud (See Abu Da'ud' Al‑Sunnah, Karachi, Kitab al‑Talaq). In some of the versions instead of one garden, two gardens are mentioned. In the version reported by Abu al‑Zubayr it is also said that when the wife of Thabit b.Qays offered to give more besides giving back the garden, the Prophet by saying ( Amaalziadatkula ) asked her to give back only the garden and forbade her to give anything more (ibid ) .

26. Abu Da'ud in his Sunan has reported the version of A'ishah in the following manner: That Habibah bint Sahl was in the marriage of Thabit b.Qays b.Shamas. Thabit gave beatings to her and she received a bone fracture. She came to the presence of the Prophet and lodged complaint against Thabit. The Prophet called Thabit in his presence and said "Take some of Habiba's property and give her up". Thabit b.Qays inquired, "O' Prophet of God: will that be correct?" The Prophet replied, "Yes. Thabit said, "0' Prophet of God! I have given her two gardens and they are in her possession". The. Prophet said, "Take those gardens back and give up Habibah". Thabit did the same. The text in Arabic reads as under:‑ Abu Daud: Al‑Sunan, Karkhana Tijarat Kutab, Karachi, Kitab al‑Talaq, p.303. The same incident is reported by Nasa'i in his Sunan from the narrative of Rabi bt. Mu'awwadh b. Afra who related "that the name of 'the wife of Thabit b.Qays was Jamilah bt.Abdullah. Her hand had got fractured. Her brother had gone to the Prophet to lodge a complaint". The fact of the garden being returned, however, is not mentioned in this narrative. The Arabic text reads as under:‑ (Al-Nasa I: Al-Sunan. Kitab ul-Talaq, p.93)

27. In a version given by another traditionist, Ibn Majah, in his Sunan, the name of the wife is given as Jamilah Bint Salul " In yet another version Habibah bt.Sahl is also mentioned. It is written in this tradition that H‑abibah bt. Sahl, the wife of Thabit b. Qays expressed her abhorence in these words, "By God, had I not been afraid of God, I might have spit upon his face when he intended to have intercourse with me.

28. Concerning this incident, some other narratives are also found in the books of traditions and the traditionists have expressed their views about them. A study of these traditions makes it clear that the wife of Thabit b.Qays had really no complaint of cruelty or maltreatment by her husband, neither was she afraid of some harm to herself nor she entertained any grievance against his morality; rather the wife (who was said to be most beautiful) instantly started hating him in her heart because of his ugliness and short stature. In the night when Thabit came to her, it is possible, the wife might have refused to yield to him and resisted him. Thabit, on this, might have thrashed her and her hand or any limb might have got fractured. From "lodging the complaint in the morning", as a report has it, it appears that the incident took place during the night. In narrating the incident of spitting on Thabit's face, Ibn Majah has used the word ( Az Dakhl Ali ) i.e. "when he intended to have intercourse with me." In another narrative, it is stated that when the Prophet came out of .his house early in the morning, he found Habibah standing outside.

29. However, the fact remains that the wife of Thabit b.Qays whether her name is Jamilah or Habibah was not prepared to stay in his wedlock and the Prophet was convinced of the fact that the wife felt such repulsion for and was so sick of her husband that if Khulal was not got effected between them, they would be unable to maintain the limits prescribed by Allah. This is the situation that is described in the Qur'an. Some of the commentators have said that the Qur'anic verse, "Then if ye (the judges) ‑fear that they both shall not maintain the limits set by God" (II: 229), referred to above, had been revealed in this context and that was the first Khulal in Islam.

30. Learned counsel for the petitioner cited the well‑known two cases viz. ; P L D 1959 Lah. 566 and P L D 1967 S C

97. In the first case Bilqees Fatima v. Najmul Ekram P L D 1959 Lah. 566 a Full Bench held that if the Court arrived at the conclusion that the couple would not be able to maintain the limits set by God, it would then , get Khulal effected without the consent of the husband by ordering the wife to pay a reasonable compensation to the husband. In the second case Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97, the Hon'ble Supreme Court adopted the same view and held that the wife is entitled to Khulal as of right, if she satisfied the conscience of the Court that it will otherwise mean forcing her into a hateful union. Where the husband disputes the right of the wife to obtain separation by Khula' it is obvious that some third party has to decide the matter and, consequently, the dispute will have to be adjudicated upon by the Qadi, with or without assistance of the Hakams. The petitioner might have been entitled to dissolution of her marriage on the ground of non‑maintenance, unauthorizedly disposing of her property and maltreatment at the hands of respondent, as alleged by the petitioner, for want of any evidence in rebuttal. Asking for Khulal by the petitioner, suggests, as she herself stated in para. 8 of the plaint, that if the Court is not prepared to dissolve the marriage on the grounds aforementioned as stated in paras. 3 to 7 of the plaint, the Court may consider the dissolution of marriage by Khula' for which she was willing and prepared to return what she had received from the respondent.

32. In so far as Khulal is concerned, the Courts in Pakistan are competent to pass decree for dissolution of marriage by Khulal it they are satisfied, on evidence, that the parties, if the marriage is i not dissolved, will not be able to live within the limits prescribed by Allah. I am conscious of the fact that a question of fact will not be gone into by the High Court in exercise of its Constitutional jurisdiction. The Family Courts have not believed the factual allegations relating to the merits of the case, as made by the petitioner and the High Court in exercise of its Constitutional jurisdiction will not ordinarily disturb or set aside the said finding of fact but all cases cannot be measured by one and the same yard‑stick. If in some case it is shown that the findings of the Family Courts, on facts, are perverse, or based on no evidence, the High Court, even in its Constitutional jurisdiction, may take a different view. In the instant case, there is no denial on record by the respondent as to the allegations levelled against him by the petitioner either in the Family Courts or this Court. He remained absent from the trial Court and, J did not file any written statement. He', however, did appear in the appellate Court and contested, through his counsel the appeal filed by the petitioner but did not file any counter‑affidavit in reply to' the appeal and affidavit filed by the petitioner. In the above Constitutional petition, he was again represented by a counsel who filed his Vakalatnama as long back as 7‑4‑1987, but he failed to file any counter‑affidavit to the petition so as to contradict the several allegations made by the petitioner against him. In these circumstances, both the Courts acted illegally in dismissing the suit and appeal of` the petitioner, in the absence of any evidence in rebuttal. The judgments passed by the two Courts below cannot at all be said to, be creditable in law.

33. The fact which has weighed very much with me is the vast difference of ages of the petitioner and the respondent. The petitioner has stated her age as 17 years and the respondent's age as 85 years in the cause‑title of the plaint. Generally speaking, the difference ins ages of the couple is not to be regarded as ground for dissolution or marriage; the reason being that the marriage is contracted by their mutual consent, but in the present case the petitioner has been given in marriage by her father during her minority, her consent is absent and if the respondent who is stated to be 85 years of age and a very old man has rendered, impotent, the petitioner is deprived of the possibility of begetting children from him which is one of the purposes of marriage. (See Hamilton's Translation of Hidaya; Kitab al‑Nikah, definition of marriage). Furthermore, the Courts cannot close their eyes from the social conditions of the present day society. If the petitioner who is an illiterate young woman of about 22 years of age is forced to live with an old man of about 85 years, (now, approximately of 90 years), under the circumstances of the case, when the petitioner's hand was given in marriage to the respondent by her father during her minority, there may be a possibility of the petitioner going astray and involve herself into sin and thus transgressing the limits prescribed by Allah. The marriage is for mutual solace and consolation, love and amity, and for purpose of procreation of children. If the said purpose get lost, for whose benefit, would it be to let the marriage continue? Perhaps, for none.

34. For the reasons mentioned above, I accept this petition. The impugned orders are declared to have been passed without lawful authority and are set aside. In the result, the marriage of the petitioner is dissolved‑by Khula' on remission of dower of Rs.1,000 As the counsel for the respondent stated no instructions on 22‑8‑1988 at the time of final argument, there will be no order as to costs. A. A . / A‑391 / K Petition accepted.