P L D 1967 Supreme Court 97 (PLP)

S. A. RAHMAN, J.‑This appeal, by special leave, arise out of the following facts. A suit was brought by the appellant Mst. Khurshid Bibi, for dissolution of her marriage with the respondent, Baboo Muhammad Amin, in a Civil Court at Khanpur, District Rahimyar Khan. A counter‑suit, for restitution of conjugal rights, was brought by the husband. The appellant's suit was dismissed, while that of the husband was decreed by the Senior Civil Judge, Rahimyar Khan, on the 21st January 1960. . The plaintiff‑appellant then brought a suit on the 19th February 1960, for a declaration that she had been divorced by the husband or in the alternative for dissolution of marriage by way of khula, in the Court of Civil Judge, Toba Tek Singh, District Lyallpur. Her case was that the rift between the parties was so serious that there was no chance of reconciliation, and harmonious relations between the spouses had become an impossibility. She also alleged in her plaint that the respondent had not spent any money on his Nikah with her, and that the plaintiff was prepared to give up her dower money in return for her release from the matrimonial tie. The respondent, in his written statement, denied that the relations between the spouses had become strained. He also averred that he had spent a sum of Rs. 2,000 on his marriage with the plaintiff. He declared that even if the plaintiff gave up her dower money, he would not be prepared to divorce her. On the pleadings of the parties, the trial Court framed the following issues:‑ (]) Whether this Court has no jurisdiction to try this suit? (2) Whether the suit of the plaintiff is barred by res judicata ? (3) Whether the defendant has divorced the plaintiff by pronouncing oral talaq? (4) Whether the plaintiff is entitled to divorce on principle of khula? If so, on what consideration? (5) Relief. Issues Nos. 1 and 2 were not pressed on behalf of the defendant. Issue No. 3 was answered m the negative. Issue No. 4 was found in favour of the plaintiff and the suit was, consequently, decreed. The learned Civil Judge, however, did not make it clear on what conditions the decree was being passed. On appeal, the learned District Judge, Lyallpur, took the view that this was not a cafe‑ in which khula should have been granted. He observed that the plaintiff, as her own witness in the case, had admitted that the defendant's treatment of her was unexceptionable at the outset, but that, subsequently he changed and took a second wife, after which he started subjecting her to physical violence. The learned District Judge, disbelieved her statement that her husband had granted a divorce to her orally, , after her first suit had been dismissed. He thought that the' divorce might have been expected to be in writing. He was, therefore, not prepared to place reliance on the plaintiff or her, witnesses who also deposed to the alleged oral divorce. He then referred to the statement of the defendant, as. his own witness, to the effect that a Panchayat had been arranged for requesting the plaintiff's family that she be sent with him but it failed because she had taken offence at his marrying a second wife. The main ground for accepting the appeal that prevailed with the. District Judge was that "the plaintiff had not come with clean hands, or with a straightforward story" He was of the opinion that' there was substance in the defendant's contention that this was a matter of zid (obstinacy) on her part. The appeal was allowed and the plaintiff's suit dismissed with costs throughout. The order, passed by the learned District Judge, was armed, in second appeal, by a learned Single Judge of the High Court of West Pakistan. The learned Judge referred to Mst. Balqis Fatima v. Najmul 1kram Qureshi (P L D 1959 Lah. 566) and remarked that the instant case was not one to which this ruling could be applied. The learned Judge observed that the sister of the defendant respondent was married to the brother of the plaintiff‑appellant and, in the circumstances, the defendant could not possibly afford to be inconsiderate or cruel towards the appellant, for fear of reprisal. As regards the plaintiff's demand for a separate residence, it was held that the defendant was unable to make provision in this ,regard for lack of funds. The learned Judge thought that the plaintiff was not prepared to go and live with the husband, because he had remarried, but. that this circumstance could not furnish a ground for khula divorce. The learned Judge further went on to say that the plaintiff appellant nowhere stated that she was prepared to forego her rights to obtain khula. The appeal was dismissed in limine. Special leave to appeal was granted in this case to consider whether the learned Single Judge was right in holding that the case was not governed by the principle laid down in Mst. Balqis Fatima's case. In that case, it was held that for khula divorce to be granted, it was only necessary that the plaintiff must express seriousness, in support of her demand, and the reasonableness or otherwise of that demand was not a relevant question at all. It would be useful, at the outset, to give a summary of the plaintiff's own statement, made as P. W. 1, in the trial Court. She stated that she had been married when she was only 6 or 7 years old and that she had lived with her husband in Alhar village and in Rahimyar Khan. Initially, she was Well‑treated by her husband, but later he married another wife, from whom he had children and he then ill‑treated her, by not giving her maintenance and even beat her on occasions. He refused to let her go to see her parents. He wanted to marry her forcibly to his own brother. She, however, sent word of this to her parents. Her 'brother obtained a warrant under section 100, Criminal Procedure Code, and she was then brought to Court from her husband's house and .released. She went away to her parents' house. She stated that, in December 1960, the defendant had come to her parents' village and expressed a desire, at the baithak of one, Muhammad Ali, to take the plaintiff back with him. In the presence of Muhammad Ali and others, the plaintiff asked for an assurance that she would be given proper maintenance and not subjected to any ill‑treatment and would not be forced into marriage with his brother. The defendant declined to give these assurances but later gave her an oral divorce and promised to grant a written divorce at Toba Tek Singh : When the plaintiff and her relatives arrived there, the defendant was not to be found. She declared that she could not pull on with the defendant, from whom she apprehended danger to her life. She denied, in her cross‑examination, that the defendant had come to the village, merely to realise costs that had been awarded to him in his decree, for restitution of conjugal rights n. and that she had brought the present suit as a counter‑blast. She admitted that the defendant's, sister was married to her own brother and was living with him. It was characterised by her as a false allegation that her brother was ill‑treating his own wife and pressing her to obtain divorce for the plaintiff from her brother. Incidentally this suggestion cuts across defendant's plea that plaintiff's brother would resent defendant parting with her and. maltreat his sister, in consequence. It may be noted that the plaintiff did not say in so many words in her statement in Court that she was prepared to relinquish her dower for' separation for khula or that her husband had spent nothing on her marriage. The omission of the first fact was noted by the learned District Judge, in appeal, but it is pointed out that she had made these allegations in her plaint in paragraph No. 5. In answer to this averment in the plaint, the defendant pleaded in the written statement that she was not entitled to khula, as there was no estrangement between them, that he had spent Rs. ‑2,000 on his marriage with her, and that, even if she was prepared to give up. her dower, he was not willing to give her a divorce. On these pleadings, the case for khula, as an alternative to a declaration that she had been divorced, must be held to have been definitely set up. ,The point of khula was also 'the subject‑matter, of a specific issue between the parties. In his statement as D. W. 1,. the defendant‑respondent, stated that he had obtained a decree for restitution of conjugal rights against the plaintiff and he went to realise the costs awarded to him therein, that the plaintiff's relatives concealed themselves and that the plaintiff brought the present suit in retaliation. He denied .that he had orally divorced her. He said she had lived with him for three years and then left his house. Her suit for dissolution of marriage had been dismissed. He declared that they could live together even now, amicably and that, if he divorced her, this might recoil on his own sister who was married to the plaintiff's brother. The truth of this assertion is obviously open to question. In cross‑examination, he conceded that he had married a second wife before the plaintiff was taken away from his house, on a warrant under section 100 of the Code of Criminal Procedure. His relations with the plaintiff deteriorated after he had married his second wife. He averred that ‑the plaintiff wanted a separate residence and he had promised her this facility but could not carry out his promise, owing to straitened circumstances. His father owned 13 acres of land, whose, produce was taken by him. He and his four brothers lived jointly with his father. He acknowledged that he owned two houses in Rahimyar Khan, that he was employed on a salary of Rs. 200 p.m. in the firm of Lever Brothers, and that he was himself living in one house, while he had rented the other house at Rs. 20 p.m. to a tenant. It is thus difficult to credit him with truth when he says that he was unable to provide a separate residence to the plaintiff because of lack of facility. The fact, moreover, that she had to be taken away from the house of her husband on a warrant under section 100, Criminal Procedure Code, shows that their relations had come to such a pass, as to leave little hope for connubial bliss. That she had developed an aversion for her husband who had married another wife, is clear from the record. She made determined efforts to get release from the matrimonial bond, by first bringing a suit for dissolution which was dismissed, and then by bringing a second suit, in which she claimed a declaration that she had been divorced, and, in the alternative, she prayed for release by way of khula. On the defendant's own showing, he had not gone personally to' bring his wife, to the plaintiff's parents' village, but had tried to realise the costs of a decree against her. The Panchayat was said to have been arranged by his father. His claim, in Court, therefore, that they could still live together amicably, does not appear to 'me to be sincere or genuine. This being the . state of relations between the parties, the question arises whether the wife is entitled, as of right, to claim khula, despite the unwillingness of the husband to release her from the matrimonial tie, if she satisfies the Court that there is no possibility of their living together, consistently with their conjugal duties and obligations. Learned counsel for the appellant, Mr. Ghazanfar Ali Gondal, strongly relied on Mst. Balqis Fatima v. Najmul Ikram Qureshi, as authority for the view that, under Muslim Law, the wife is entitled to khula, as of right, if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union. A Full Bench of the West Pakistan High Court held, in that case, that the wife is entitled to dissolution of her marriage, on restoration of what she received in consideration of marriage, if the Judge apprehends that the parties will' not observe the "limits of God". This latter limitation is an important one and it is only in cases where a harmonious married state, as envisaged by Islam, will not be possible, that such a decree for khula will be granted. If the rift between the parties is a serious one and there is danger of the wife transgressing the Islamic injunctions, in case the dissolution is not ordered, then there would be plain necessity for the grant of khula. This conclusion was arrived at, after a review of the Qur'anic injunctions on the subject, the relevant Ahadith, previous case‑law, and the opinions of legists and commentators of the Qur'an. The view expressed in Mst. Umar Bibi v. Muhammad Din (1 L R (1944) 25 Lah. 542) by a Division Bench of the Lahore High Court and endorsed in the Full Bench case of Mst. Sayeeda Khanam v. Muhammad Sami (P L D 1952 Lah. 113), to the effect, that incompatibility of temperament, is not a ground for dissolution of marriage and that it is not possible for a Court to grant a khula decree, unless the husband consents thereto, was dissented from. Besides referring to the quotations from the original sources, relied on in the cage of Mst. Balqis Fatima, Mr. Gondal also drew our attention to an Urdu translation of "Badayat‑ul Mujtahid" by Allama Ibn‑e‑Rushud, at p. 158, published by the Idara‑tul‑Muslimin, Rabwah. After discussing the nature of khula and the conditions, in which it would be permissible, the learned author expresses himself as follows:‑ "And the philosophy of khula is this, that khula is provided for the woman, in opposition to the right of divorce vested in the man. Thus if trouble arises from the side of the woman, the man is given the power to divorce her, and when injury is received from the man's side, the woman is given the right to obtain khula." Allama Ibn‑e‑Rushud who had been reared in the Maliki school of thought, was born in Cordova in Spain in 1126 A. D. and died in Morroco in the year 1198 A. D. He did not believe in confining himself to the principle of fiqh, enunciated by Imam Malik. He was a philosopher and scholar, who formed independent opinions and had no hesitation in accepting views of the other Imams like Imam Abu Hanifa, in several matters. Mr. Muhammad Almas Ali, who appeared for the respondent, contended before us that, among the followers of the Hanafi sect, to which the parties in this case belong, the view prevails that the consent of the husband, to the grant of khula, is absolutely necessary and the Court cannot decree khula, without such consent. He relied on the case of Mst. Sayeeda Khanam v. Muhammad Sami and Mst. Umar Bibi v. Muhammad Din, referred to above, and also invited attention to certain verses of the Qur'an, and the opinions of a number of commentators and legists on the subject. Learned counsel for the respondent relied on the Iiedaya, page 112 of Hamilton's Translation, Second Edition by Grady, where it is stated as follows:‑ "Whenever enmity takes place between husband and wife, and they both see reason to apprehend that the ends of marriage are not likely to be answered by a continuance of their union, the woman need not scruple to release herself from the power of her husband, by offering such a compensation as may induce him to liberate her, because the word of God says, "NO CRIME IS IMPUTED TO THE WIFE OR HER HUSBAND RESPECTING THE MATTER IN LIEU OF WHICH SHE HATH RELEASED HERSELF" that is to say, there is no crime in the husband's accepting such compensation, nor in the wife's giving it." It is further recited in that book that "where compensation is thus offered and accepted, a single divorce, irreversible, takes place, in virtue of khoola‑,' and the woman is answerable for the amount of it, because the Prophet has said that khoola effects an irreversible divorce; and also, because the word `khoola' bears the sense of divorce, whence it is that it is classed with the implied expressions of it, and from an implied divorce a divorce irreversi ble takes place." Learned counsel fortified his argument by referring us to Qur'anic verse No. 238 in Pa'ra II of the Qur'an, which reads as follows: "And if you divorce them before you have touched them, but have settled for a dowry, then half of what you have settled shall be due from you, unless they remit, or he, in whose hand is the tie of marriage, should remit. And that you should remit is nearer to righteousness. And do not forget to ' do good to one another. Surely, Allah sees what you do." In this connection, learned counsel drew our attention to certain commentaries of the Qur'an, which take the view that by the expression "person in whose hand is the tie of marriage" is meant the husband, in this verse. This is by no means universally accepted. Some commentators have interpreted these words as referring to the guardian of the woman and ,this interpretation seems to be more consistent with the context. Learned counsel cited from Tafseer‑i‑Mazhari,4naya, which is a commentary ,of the Hedaya, Raddul Mukhtar, Tafseer‑ul‑Madarik, Tafseer‑ul Ahmadya, Tafseer‑i‑Kabir, in support of the view that khula means talaq‑i‑bain, that is, an irreversible divorce. He also drew strength from the language, used in certain Ahadith, which showed that the Prophet, while ordering release of the woman by way of khula, directed that the husband should give the wife talaq. The fundamental laws of Islam are contained in the Qur'an and this is, by common consent, the primary source of law for Muslims. Hanafi Muslim jurisprudence also recognises hadith, ijtehad and, ijma as the three other secondary sources of law. The last‑two really fall under a single category of subsidiary reasoning;' ijtehad being by individual scholars and ijma being the concensus of scholars who have resorted to ijtehad in any one age. That this is the order of priority, in their importance, is clear from the well‑known hadith, relating to Muadh‑ibn‑e‑Jabal who was sent by the Prophet as Governor and Qazi of Yemen. The Prophet asked him, how he would adjudicate cases. "By the Book of God", he replied. "But if you find nothing in the Book of God, how?" Then by the. precedent of the Prophet". "But if there be no precedent?" "Then I will diligently try to form my own judgment." On this, the Prophet is reported to have said, "Praise be to God who hath fulfilled in the messenger sent forth by his apostle that which is well‑pleasing to the apostle of Allah". The four orthodox schools of Suhni fiqah were headed by Imami Abu Hanifa, Imam Malik, Imam Shafei and Imam Ahmad‑bin. Haubil. The learned Imams never 'claimed finality for the. opinions, but due to various historical causes, their followers in sub sequent ages, invented the doctrine of taqlid, under which a Sunni, Muslim must follow the opinions of only one of their Imams. exclusively, irrespective. of whether reason be in favour of another opinion. There is no warrant for this doctrinaire fossilization, i1J the Quran or authentic Ahadith. In the Almital‑wan‑Nihal (page 39), it is stated that the great Abu Hanifa used to say "This is my opinion and I consider it to be the best. If someone regards another person's opinion to be better, he is welcome to it ("for him is his opinion and for us ours"). A few words may now be said about the concept of marriage in Islam. As is well‑settled, marriage among Muslims is not a sacrament, but in the nature of a civil contract. Such a contract undoubtedly has spiritual and moral overtones and undertones, but legally, in essence, it remains a contract between the parties which can be the subject of dissolution for good cause. In this respect, Islam, the .Din‑al‑Fitrat, conforms to the dictates of human nature and does not prescribe the binding together of a man and woman to what has been described as "holy dead lock." The husband is given the right to divorce his wife, though, of course, arbitrary divorces are discountenanced. There is a saying of the Prophet to the effect that "the most detestable of lawful things in Allah's view is divorce Abou Daood). Similarly, the wife is given the right to ask for khula in cases of extreme incompatibility though the warning is conveyed by ahadith against too free exercise of this privilege, one of which says that women asking for khula will be deprived of the fragrance of paradise (Trimizi) The warning both to man and woman in this regard, is obviously placed on the moral rather than the legal plane and is not destructive of their legal rights. The Qur'an also declares: "Women have rights against men, similar to those that, the men have against them, according to the well‑known rules of equity" It would, therefore, be surprising if the Qur'an did not provide for the separation of the spouses, at the instance of the wife, in any circumstances. The Qur'an expressly says that the husband should either retain the wife, according to well‑recognised custom (Imsak‑un‑bil‑ma'roof) or release her with grace (Tasree‑hun‑bi‑i/tsan). The word of God enjoined the husband not to cling to the woman, in order to cause her injury. Another hadith declares Lazarar‑un‑wa‑la‑zarar‑fil‑Islam) "Let no harm be done, nor harm be suffered in Islam". In certain circumstances, therefore, if the husband proves recalcitrant and does not agree to release the woman from the marital bond, the Qazi may well intervene to give redress and enforce the Qur'anic injunctions. As was pointed out by Kaikaus, J. in Mst. Balqis Fatima's case the foundation of the law relevant to khula is contained in the Qur'anic verses, which may be translated as follows: "Such divorce may be pronounced twice; then, either retain them in a becoming manner or send them away with. kindness. And it is not lawful for you that you take anything of what you have given them, unless both fear that they cannot observe the limits prescribed by Allah. But, if you fear that they cannot observe the limits prescribed by Allah, then it shall be no sin for either of them in what she gives to get her freedom. These are the limits prescribed by Allah, so transgress them not; and whose transgresses the limits prescribed by Allah, it is they that are the wrong‑doers." We may first consider the opinions of the commentators of the Qur'an as to the meaning of these verses, bearing on khula. The words (if you fear) are addressed to the community or (those in authority from among you), and include the Qazi, who represents the community, for adjudication of disputes. This is borne out from the com mentary of the Qur'an by Qurtabi, known as "Al Ja'me‑le‑Ahkaam al‑ Qur'an". The learned author says that this is the opinion of Ibn‑e‑Abbas and Malik‑bin‑Anas as well as the majority of the legists. Similar opinion is expressed by Zamakhshri in his well‑known commentary J1.:K11 (Alkashshaf), by (Nasafi) in his Tafseer, called (Madarak‑ul‑tanzil‑wa‑Haqaiq‑ul‑ Ta'veel), by Baizavi in his Tafsir Anwar‑ul‑Tanail‑wa Israr‑ul‑Ta'veel, by (Al‑Qastallani) in his (Irshad‑us‑Sazi), by L;OJassas in his (Ahkamul Qur'an) and by the authors of (Tafsir Ibne Kasir) , and (Tafsir Khazin). Baizavi distinctly says that this is so because the rulers are in a position to give orders when disputes are presented before them. In snore recent times, Mufti Muhammad Abduh of Egypt, in his Tafsir Manay `1 has endorsed this view. For analogy, the cases of (li'an) and Mafqoodel Khabar may be cited a in which cases the Qazi, it is settled, has the authority to separate the spouses, even if the husband is refusing to grant a divorce or is not available. The Hedaya, the (Radd‑ul‑Muhtar) and the (Ahkam‑ul‑Qur'an) of (Aljasas) agree in this respect. By the phrase "Limits of Allah", according to the above‑cited commentators, reference is intended to the injunctions regard ing the performance of conjugal obligations while living together. Ibne‑Hammam in his (Fateh‑ul Qadir), Vol. III, p. 199 and Jassas in his (Ahkamul Qur'an), Vol. 1, p. 391 have adopted this view which also finds mention in Sahih Bokhari (Arabic Text), published by Karkhana Tijarat‑i‑Kutub, Karachi (Vol. II, p. 794). It is explained that incurable aversion to the husband, on the part of the wife would be sufficient justification for khula. Shah Wali Amin Ullah of Delhi in AI‑Musawwa‑min‑H Ahadith‑al‑Muatta Vol. I1, p. 160) goes to the length of saying that "even if she obtains khul' without any reason (apart from personal dislike) it is lawful but not approved. The reason is that the Prophet and the Companions never inquired from her the reason for her (seeking) khul'." The question whether khula is to be equated with talaq, or it is a form of, dissolution of marriage in a category of its own, has been the subject of controversy amongst the jurists. Ibn‑i‑Rushud, in his Badaya‑tul‑Mujtahid, says that most of the ulema and Imam Malik and Imam Abu Hanifa are of the opinion that Khula is equivalent to talaq. On the other band, Imam Shafe'i, Imam Ahmad, Imam Daood and out of .the Companions, Ibn‑e Abbas were of the view that khula amounts to fzskh‑i nikah (cancellation or dissolution of marriage) ,and not talaq. Imam Shafe'i had also stated on another occasion that if the husband intended talaq, even in a contract of khula, it would operate as talaq and if he had. the intention of fiskh‑i‑nikah, it will have effect as such. lbn‑e‑Hajar Asqlani in his books (Alderaya‑fi‑Takhrija‑Ahadith‑ul‑Hidaya and Fat‑hul‑Bari) prefers the opinion of Ibn‑e‑Abbas on this point and casts doubt on the authenticity of the hadith which equates it with (irreversible divorce). He relies in this connection on a Tradition of the Prophet, which specified that Sabet‑bin‑Qais's wife, after the grant of khula, was ordered to pass one period of menstruation as her iddat and this would not be so if khula were talaq. He reiterates this position in (Talkhisul Habir Vol. III, p. 205). On the other hand, the authorities quoted, on behalf of the respondent, including the Hedaya, take the view that there is no difference between khula and talaq. This question need not detain us further. There are good reasons for the view that khula is separation and not talaq, as the right of the husband to take back the wife after khula, does not exist, as it does in the case of talaq-i‑raja'i and the period of Iddat is different is the two cases. The relevant Ahadith are discussed by Shaukani in LT (Kitab‑ul‑Khul Vol. 111, p. 260) of his celebrated work (Nail‑al‑Autar) and he reaches the conclusion that khula is not a type of talaq, but is a category apart t from it. If this opinion is accepted, then it is clear that khula is not dependent on the will of the husband alone. But even if khula be regarded as talaq as seems to be the view of some of the orthodox Hanafi Jurists, the question arises whether the wife is not entitled,: in appropriate cases, to demand a khula divorce from the husband, in the face of the latter's opposition. This problem finds no . express treatment in the treatises of these Hanafi Jurists who content themselves by saying that divorce is the right of the husband. It must be admitted that this is also a controversial question. Dr. Sabum has summarized various opinions, bearing on this point, at page 621 of his book. In particular he refers to what is related from Umar‑ibn‑Al‑Khattab, through the authority of Behaqi, that he said that "when women desire khan' do not deny it". Sha'rani in his book (Al‑Mizan‑ul‑Kimiia, Vol. II, page 117) says: "Imams agree in that the woman, if she dislikes her husband because of his ugliness or misconduct she has a right to seek khul' by payment of compensation Even if there is nothing to cause her dislike and the husband and wife both agree upon khul; without any reason, it is lawful and is not condemned. On the contrary, Zuhri, Ata and Daud refute this stand by saying that "khul" in this case is futile and what is futile is un lawful and that which is unlawful is condemned". Dr. Sabuni in his book "Mada Hurriyat‑al‑Zaujain" at page 572, says "A large section of Muslim jurists believe that khula is lawful only with the existence of dislike on the part of the wife, so that the husbands may not start oppressing their wives to make them seek khul' so as to get back the property they gave to them." Badaruddin Ayni in his Umda‑tul‑Qari, Vol. IX, p. 573 says: "There is difference of opinion in the case when both spouses agree; on separation, Malik, Auza'i and Ishaq are of the opinion that no Hakams are required and nor (further) permission of spouses. Kufis, Shaf'i and Ahmad have said that their permission is necessary, as the right to divorce is in the hands of the husband. If he permits, well 'and good; otherwise the Court will divorce on his behalf". This has reference to the well‑known verse of the Qur'an, which requires Hakams to represent spouses to be appointed in case of shiqa( which means breach or schism between them, for the purpose of effecting reconciliation if possible and for ordering separation if that be necessary. Some of the legists have described ffakums as merely Attorneys or arbitrators and not Judges, but others have said that they have full powers to decide as they think fit Some have held that the arbitrators' opinion is to be submitted to the Qazi,. who will .decide, in accordance with that opinion There is also difference of opinion among the legists as to whether reference on the Sultan (Sovereign) or Qazi is necessary, at all, or not. This will be found discussed) by Ibn‑e‑Hazm in J~1) (Almohalla)., This difference, arises owing to the fact that two situations are contemplated by the writers. . One is where khula takes place as a result of the mutual consent of the spouses, which is technically called mubafa't. In such a case it appears that no reference to the Qazi is necessary. But 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 Qazi, with of without assistance of the Hakams: Any other interpretation of the Qur'anic verse regarding khula would deprive it of all efficacy as a charter granted to the wife. It is significant that according to the Qur'an, she can "ransom herself" or "get her release" and it is plain that these words connote an independent right in her. The Qur'anic injunctions must be interpreted in the light of well‑known ahadith. The classical instance of khula is that of the wife of Sabet‑bin‑Qais‑bin‑Shamas. That tradition is to be found in various collections of ahadith, including Bokhari, Abu Daood, Nasai, Ibn‑e‑Maja and Tirmizi. But there are two versions, one referring to Jamila, daughter of a sister of Abdullah bin Abi Salool (in some versions, daughter of Abdullah and the other to Habiba, daughter of Sahl. It is said by some commenta tors that the two cases relate to two different wives of the same person. Jamila came to the Prophet, according to this tradition, and said that she had no reason to reproach Sabet bin‑Qais, in respect of his morals or his faith, but she disliked him and after going into the fold of Islam, she did not want to commit infidelity. The Prophet asked her whether she was pre pared to return the garden given by her husband to her, in dower. She answered in the affirmative. The Prophet then directed the husband to accept the garden and to give her a divorce according to one version. Another version given by Bokhari, has it that when she agreed to return the garden to her husband, the Prophet ordered "Qats and he" separated her. From still another version given by Hazrat Aisha Siddiqa, (related by Abu Daud) it. seems that Habiba was also subjected by her husband to physical violence during the previous night but this fact was not put forward .by the woman, apparently, as ground for her release. Abu Daood also talks of two gardens being returned, which had been originally gifted by the husband. The two different versions may be reconciled by the suggestion that, due to her aversion, Habiba was not willing to perform her marital obligations and was beaten by her husband in consequence. The generally accepted account of Jamila's case as well as that of Habiba makes it clear that the only ground on which the Prophet ordered the woman to be released from the marriage bond, was her intense dislike of her husband. According to one text, she clarified that she found him to be ugly and repulsive, and in another that she felt like spitting at him. The Prophet being convinced that the spouses could not live together in conformity with their conjugal obligations, ordered the husband to separate her. Hakim in Almustadrak Ibne‑Abdul Barr in (Al-Istiab), Sbaukani in Nail‑ul‑Autar the last‑named (relying on Dar Qatani's version), are categorical in saying that it was the Prophet who ordered. the separation. As has been observed above, Ibne Hajr Asqlan'. shares this opinion and doubts the authenticity of the haditl, which specifies that this was a case of talaq. Ibne Hazm in Al Mohalla upholds the Qazi's right to effect separation by khula, after efforts at conciliation through Hakams have failed. It is not possible to consider this act of the Prophet, except as one conceding the right of the wife, in circumstances of extreme discard. The opinion of Allama Ibne Rushud on this point has already been quoted in support of the thesis that khula is a right of the wife. Amir Ali in his Muhammadan Law, Vol. II, p. 466 and M. Muhammad Ali in his Religion of Islam p. 676, express themselves in similar terms. Some other modern opinions will be found collected in Kaikaus, J's judgment in Balqis Fatima's case including one by Wilson in his Anglo‑Muhammadan Law. Kaikaus, J., has also cited the case of a woman who sought divorce from her husband in Hazrat Umar's time and after testing the seriousness of her demand by confining her in a dirty prison, he ordered her to be separated from her spouse. A modern priest of Egypt, Ali Khafif in his book Furaq‑al Zauj‑fi‑al Mazahib al Islamia strongly supports the wife's right to khul' when discord is established. I may add, however, that opinions of living authors P are not entitled to as much weight as those who have joined the majority, since the possibility of their changing their views before death cannot be excluded. The present trend of legislation in Muslim countries which may provide indication of Ijma's in modern times, may also be examined. The right of the wife to obtain separation from he husband on any ground of () ha) (injury), is recognised in Iraq by section 40 of Qanun‑ul‑Ahwal‑al‑Shakhsiya of 1959, in Egypt by section 6 of Law No. 25 of 1929, in Tunis by section 25 of Mujalla‑tul‑Ahwal‑ul‑Shakhsiya in Morroco by section 56 of Mudawwana‑tul‑Ahwal‑ul‑Shakhsiya‑al‑Maghrib, in Jordan by section 96 of Qanun‑o‑Huquq‑al‑Alla‑tul‑Urdani and in Syria by section 112 of Qanun‑ul‑Ahwal‑ul‑Shakhsiya‑Assuri. In some of these Codes it is provided that the matter will first be referred to Hakams and the final decision will rest with the Court. The argument was raised on behalf of the respondent, that the case should be decided only in accordance with the opinions of Hanafi doctors, who contemplate the grant of a divorce on the part of the husband even in the case of khula and not separa tion such as could be ordered by a Qazi. The authorities refer red to, however, do not discuss what would happen in case the husband is reluctant to divorce the wife but the relations between the spouses have deteriorated so considerably that they could not be expected to live together within the limits of Allah. Such a position is expressly dealt with in books of other Sunni sects‑the Malikis, the Shafe'is and the Hambalis. It is permissible to refer to those opinions which are consistent with the Qur'anic injunc tions. A certain amount of fluidity exists, even among orthodox Hanafis in certain matters. In the case of a husband who has become mafqudulkhabar (absent without news) for instance, Malikis opinion can be resorted to by a Hanafi Qazi, as is men tioned in Radd‑ul‑Muhtar. There is a hadith of the Prophet, concerning Barairah who was married to a slave, named Mughis. She did not live with her husband who followed her disconsolate and weeping, in public. The Prophet advised her to go back to her husband. She asked: "Is this an order?" The Prophet said that it was merely a recommendation. She then declined to go back to her husband, saying: "I 'have no need of him." This shows that a woman cannot be compelled, if she has a fixed aversion to 'her husband, to live with him. The reasoning that found favour in the cases of Umar Bibi and Sayeeda Khanam may also be briefly noticed. Those reasons were analysed by Kaikus, J. in Balqis Fatima's case and with respect, it seems to me, justification was shown to exist for departing from the earlier view. a Sir Abdur Rahman, J. in Umar Bibi's case relied on Baillie's Digest of Muhammadan LaW, First Part, p. 305, the Hedaya, Book. 1, Vol. IV, Chapter on khula and the corresponding Chapter in Durr‑ul‑Mukhtar and held that even in khula cases; it is the right of the husband to effect separation, by granting a divorce. These authorities, however, do not consider contentious cases, where the husband refuses to release the wife, out of pure obstinacy. The learned Judge also expressed the opinion that even where there was mutual dislike or extreme incompatibility of temperament between husband ‑and wife there can be muaddat (mss), sukoon v. and rehmat in the married life (declared to be objectives of marriage by the Qur'an), with the procreation of children. With respect, it seems to me, that this view is difficult to sustain. In such cases, if there is fixed aversion on the part of the wife or the husband, life becomes a torture for both. The learned Judge also thought that the first condition for. separa tion between the spouses is that Hakams should have been appointed, in accordance with the injunctions of the Qur'an, and it would be for them to consider whether the couple should be parted or not. But if the Hakams can so decide under authority of an order by the Qazi, I confess, it is difficult to see why a Qazi does not possess a similar capacity in suitable cases. It is said in the Mabsoot of Al‑Sarakhsi, Vol. 11 that the Qazi has the power to remove cause's of tyranny by means of talaq. It is also in the Radd‑ul‑Muhtar that, for this purpose, the Qazi becomes the agent of the husband, if he refuses to give divorce. In Sayeeda Khanam's case, the verse bearing on the right of khula, was not noticed, though the hadith in respect of Jamila, . wife of Sabet‑bin‑Qais‑was discussed. The opinion was expressed in that judgment that the decision of the Prophet in that case was not to be regarded as a decree, awarded by him in the capacity of a Judge or as the Head of the State of, Islam. It was thought that, as the husband was agreeable to the separation, on the delivery back to him, of his garden, this was a separation by mutual consent, and it was in consequence of this that the Prophet gave his direction. It would be more consistent, in by humble opinion, with the letter and spirit of the Qur'an which places the husband and the wife on an equal footing, in. respect of rights of one against the other, to construe this incidents a meaning that the person in authority, including the Qazi, can order separation by khula even if ,the husband is not agreeable to that course. Of bourse the Qur'anic condition must be satisfied that it is no longer possible for the husband and the wife to live together in harmony and in conformity with their obligations. After a discussion of the original sources, I have, therefore, reached the conclusion that the view, taken by Kaikaus, J. in Balqis Fatima's case, that the relevant verse of the Qur'an gives the right of khula to the wife subject to the limitation mentioned therein is correct. In the present case, on the facts, it has been found that there is no possibility left, of the parties residing together in amity and goodwill. There has been litigation between them. The wife had to be brought away from the husband's house, on a warrant, issued under section 100, Criminal Procedure Code. She may have taken an intense dislike to her husband, after he contracted his second marriage, but ever since that time, she has consistently declined to share the connubial bed with him. In the circumstances, it would be idle to have recourse to the formality of appointing Hakams to attempt a reconciliation between them, considering that a Panchayat, convened by the defendant's father, also failed, in this respect. I would9 therefore, hold that the plaintiff is entitled to separation from her husband, by khula, in the circumstances of the instant case. The next question is on what terms, such a decree should be granted to her. Unfortunately, in the trial Court, the question of terms was not gone into, on either side, and the trial Judge also failed to advert to this aspect of the matter. There is no material on the file, from which it can be ascertained how much money, if at all, the husband had given to the wife, on the occasion of the marriage, and on receipt of what compensation he would be willing to grant her khula. The pleadings of the parties show that the dower, whatever its amount was, had not yet been paid to the wife. She merely express her willingness to relinquish her dower, but the husband said, he was not agreeable even, on this condition, to grant her khula. He did not plead that he had actually paid her the dower. Though, according to the Hedaya, it is abominable on the part of the husband to have more than the dower itself, in a case of separation by khula, yet if he insists, it is legally permissible for him to demand something more than the dower, and to the extent that he might have been out of pocket, in respect of gifts, given to the wife on marriage, he may, in law, demand restitution. This would necessitate an enquiry into the facts ‑and the final decision as to what compensation must be paid by the wife for he relief, must rest with the Court. I would, therefore, allow the appeal and send back the case to the trial Judge, with the direction the parties may be permitted to lead evidence to what gifts, if any, and of what value, were given by the husband to the wife, on the occasion of the marriage, so that if the husband wants to take more than the dower, the condition may be imposed on the wife, to pay the additional sum, expended by the husband on her, to the grant of khula. The parties may be left to bear their own costs throughout in the circumstances of the case. (Some of the original authorities referred to in this judgment have been collected together by me in the form of an appendix to this judgment. HAMOODUR RAHMAN, J.‑I agree. MUHAMMAD YAQUB ALI, J.‑I agree. APPENDIX FROM THE QUR'AN Such divorce may be pronounced twice; then either retain them in a becoming manner or send them away with kindness, And it is not lawful for you that you take anything of what you have given them both fear that they cannot observe the limits But if you fear that they cannot preserve the limits prescribed by Allah, then it shall be no sin for either of them in what she gives to given to get her freedom. These are the limits prescribed by Allah, so transgress them not; and who so transgresses the limits prescribed by Allah, it is they that are the wrong‑doers. And when you divorce your wives (by a revocable divorce) and they approach the end of their appointed period, then either retain them in a becoming manner or send them away in a becoming manner; but retain them not wrongfully so that you may transgress. And the women have rights similar to those (of men) over them in equity but men have a rank above them reproach Sabit in respect of character or religion but I do not want to be guilty of infidelity in Islam". So the Messenger of Allah said to her. "Would you give him back his garden? She said "Yes". The Messenger of Allah said "Accept the garden and give her one Talaq". (Bokhari Vol. II, p. 794‑Printed 1357 at Nur Mohammadi Asha Almatabi, Delhi)‑and in another version (also in Bokhari) "Will you give back his garden to him?" She said, "yes". So she returned it to him and he (the Messenger of Allah) ordered him and he separated her. (After reciting the narrators) Habiba, daughter of Sohl, was the wife of Sabit‑bin‑Qais‑bin‑Shamas and he was a short‑statured and ugly man. She said, "O Messenger of Allah. By God, if I did not fear God, I would have spat at his face when he comes to me." The Messenger of Allah said, "Will you return his garden to him?" She said, "Yes". So she returned his garden to him and the Prophet of Allah separated them: FROM OPINIONS OF COMMENTATORS OF THE QUR'AN & LEGISTS Muhammad‑bin‑Sirin used to say that their,(others named) say that khul' is not possible, except before the Sultan. (From Saeed b. Jabeer Tabai) Khul' will take place only when the husband first tries to advise the woman against it. If she accepts the advice, well and good, otherwise, he might beat her. If she accepts, good, otherwise, both will go to the Sultan (i.e. persons in authority including Qazi or Court). The Sultan will then appoint a Hakam from her family and another from his. Each of the Hakams will convey what he has heard from his client to the Sultan. Then if the Sultan comes to the conclusion that they should separate, he will separate them and if he forms the opinion that they should live together, he will order accordingly. (Almohalla‑Ibn Hazm, Vol. X, page 237) (Commenting on this statement of Saeed b. Jabeer)‑Abubakr says, the position is the same as in the case of lnin (impotent), majbub (the mutilated) and I'la (oath of abstinance) in which the Hakim (ruler) has the authority to adjudicate. (Ahkamal Qur'an by Jassas Vol. II, p. 231) Imams agree in that the woman, if she dislikes her husband because of his ugliness or misconduct, has a right to seek khul' by payment of compensation. Even if there is nothing to cause her dislike and the husband and wife both agree upon khul' without any reason, it is lawful and is not condemned. On the contrary, Zuhri, Ata and Daud refute this stand, arguing that the khul' is in this case futile and what is futile is unlawful and that which is unlawful is condemned. (Sha'rani, Almizanal Kubra, Vol. Il, page 119) And if you say that Imams and Rulers neither take anything from nor give anything to the woman, I will say that both things are permissible in this way that in the first part (of the verse) the spouses are addressed and in the second part, the Imams and Rulers are addressed. (Alkashshaf‑Zamakhshari‑Matba Mustafa Muhammad) (d. 528 H.) Egypt, 1354 H. page 139) persons in authority, if you fear". And it is permissible to say that the spouses are first addressed and then the Rulers. (Madarakal Tanzil wa Haqaiqal Tavil by the Imam Hafizud Din Abdullah . Ahmad b. Mahmood AI‑Nasafi d. 701 H. Printed Cairo 1936 A. D. Vol. I, p. 148) These words are addressed' to the Rulers as they are authorised to give orders regarding the giving and taking of compensation when the matter is taken to them and the words of the verse show that khula is not permissible without dislike and discord. (Anwaral Tanzil wa Asraral Tavil, known as Tafsir Al‑Baidawi‑Matba Mujtabai, Delhi 1326 H. p. 150) i.e. that they will not preserve the limits of Allah which means they will not maintain what is obligatory on them of kind companionship and attractive and affectionate living together. These words are addressed to the people in authority and those exercising similar powers though not in authority (as officials). "The failure to maintain the limits of Allah" means the fear of a woman that she will not discharge her obligations towards her husband or obey him as she should. So say Ibn Abbas and Malik b. Anas and the majority of the legists. And AlHasan b. Abial Hasan and others with him say; If a woman says (to her husband) I will not obey you, nor will I bathe for you from state of impurity nor shall I co‑operate with you in anything, khul' becomes lawful. And AI‑Shaabi says means they shall not obey Allah, i.e. their mutual dislike invites rebellion and Ata b. Abi Rabah says:‑The khul' and the taking of the compensation by the husband become lawful when a woman says to her husband "I dislike you and do not love your words similar to these. (Aljami Al Ahkam Al‑Qur'an of Abi Abdullah b. Muhammad b. Ahmad Al‑Ansari A1 Qartabi‑III Part‑Cairo, Matba' Darul Kutab Almisriyya Alaism al Adahi‑19 3fl A long section of Muslim Jurists believe that khul' is lawful only with the existence of dislike on the part of the wife, so that the husbands may not start oppressing their wives to make them seek khul' so as to get back the property they gave to them. (Mada Hurriyat al‑Zaujain‑‑Dr. Sabuni, p. 5'72) When he does wrong to her by denying her rights until she is annoyed and takes khul' for hersel)', in this case this action on his part is prohibited but the khul' is effective, because Allah has commanded in prohibitory form, "Don't detain them (the wives) so that you take away some of what you have given to them"(S. Nisa verse 18) the word used in this verse is which means to detain and to free, Allah also says: If you want to take one wife in place of another (if you have given one of them a treasure, take not ought therefrom); there is (in this verse) an indication to a man's aspiration for a woman other than his wife without finding any fault with her. And the lawful khul' without any disapproval is that a woman dislikes the company of her husband and she does not find it possible to fulfil her duties towards him and she suffers on this account and obtains her freedom on the basis of Allah's saying: "But if they fear that they would not aside by the limitations ordained by Allah" And this finds. confirmation from the Prophet in case of khul' deinanded by Habiba bint Sahl, when she stated her differences (with her husband).. Even if she obtains her khul' without any reason, it is lawful but not approved. The reason is that the Prophet and the Companions never enquired from her the treason for her (seeking) khul'. (Shah Wali Ullah‑Almasawwa min Ahadith‑al‑Muatta, Vol. II, p. 160 Matba' Salfiyya Mecca 1351 H.) It is the earlier statement of Shafai (that khul' is a divorce). He mentioned in his Ahkamal Qur'an, reviewing his earlier statement that this is a dissolution of marriage and not a divorce. It is also quoted from Ibn At‑ bas, through an authentic narration of Abdur Razzaq and from Ibn Zubayr, Uthman Ali, Akrimah and Taus and this is the famous standpoint of Ahmad b. Hambal. (Ibn‑Hajr Asqalani‑Fathal Bari Vol. IX, p. 318.) Khul' is `not valid in the absence of the Sultan. In the words of Ibn Abi Shebah, "It must be in the presence of the Sultan (or the judge). Abu Ubayd argues on the basis of the Qur'anic verse, "If you fear that they will not abide by the limits of God" and by the words of Allah, "If you fear disagreement between them". He says that the fear is ascribed to others than the spouses and it is not stated that they both fear. So here the verse implies the public authorities. (Al‑Qastallani‑Irshad‑al‑Sari‑Vol. III, p. 149). There is a 'difference of opinion in the case when both spouses agree on separation. Malik, Auza'i and Ishaq are of the opinion that no hakams are required and nor (is further) permission of spouses. The Kufis, Shafa'i and Ahmad said that their permission is necessary as the right to divorce is in the hands of husband. If he permits well and good otherwise the Court will divorce on his behalf. (Badrud Din `Ayni, Umdat‑al‑Qari‑Vol. IX, p. 573‑Darul Tabbat‑al Amira ‑T‑N). Does it not follow from this Hadith‑i‑Sahih the hadith regarding Sabit b. Qais' wife) that the Qazi has the right of ordering separation by khula among the spouses when the wife takes her dispute with the husband to him and she is unable to tolerate his enmity and in such conditions that their mutual relations cannot endure in their present state and she is unable to maintain the limits ordained by Allah, with him? Then he (the Qazi) shall order their separation by khula on return of the mehr given to the wife by the husband. If they both agree well and good, otherwise the Qazi will decide between them and will impose his decision on them, when the wife is agreeable to it but the husband is refusing to accept it, I consider this Hadith to lead to this conclusion that the direction of the Prophet in the matter of khul' separation between Sabit and his wife, does not amount to a mere piece of advice or something praiseworthy, obedience to which is not obligatory, as some legists have opined. It is clear that when the spouses presented their dispute before the Prophet and the state of affairs had come to such a pass that despite faith and ‑morality there was no possibility of reconciliation, then the Prophet could not have left the matter suspended without an immediate and absolute decision. Since contrary to this, there is no positive opinion of any legist; this conclusion receives no damage, in the presence of a Sahih Hadith. (Faruq‑al‑Zawaj‑fi‑Al‑Mazahibal Islamia by Ali Khafif Egypt ‑p. 135 Margin). (IMPORTENCY) Here the husband is wrong‑doer in keeping. her with him without needing her (due to incapacity) and the Judge has the authority to remove harm through divorce. (Almabsut by Sarakhsi, Vol. V, p. 97). When the period allowed by the Judge passes and the impotent husband does not cohabit with her, it is evident that , the disability is natural. So the "retaining with equity" is invalidated and separation with grace becomes incumbent on him. If he persists, the Judge will act on his behalf and he will separate them. (Al‑Hidayah‑Chapter `Inin, p. 19/20). 'Ila: She will become irrevocably divorced after an order of separation by the Qazi as therein is prevention of her right to intercourse and therefore the Qazi will become the representative of the husband as in the case of mutilation and impotency. (Hedaya‑Vol. II, p. 381). Imam Malik says that the Qazi will grant divorce, in place of the husband and the Ahlt Zahir (followers of Daud Zahiri) say that the husband will be kept in prison till he himself grants divorce. Those who regard the well‑known foundation of divorce, say that divorce cat; proceed from the husband alone and those who consider the injury that results to the women in this respect, say that the Sultan will grant divorce on his behalf and they thus pay regard to the public welfare. This is known as Qiyas Mursal. Imam Malik is reported to have acted on it but many legists deny this. (Badayat‑al‑Mujtahid‑Ibn‑i‑Rushud, Vol. II, page 101). (In the matter of `Inin) And the Prophet said "Let no harm be done nor harm suffered in Islam." if it was not so, it would lead to a contradiction and that is impossible because Allah has made it obligatory for the husband to keep her in becoming manner or to part her with kindness as Allah says "So keep them in becoming manner or part them with kindness". It is definitely known that to keep her in marriage while depriving her of her husband's company is not Imsak‑bil‑Maruf. So it becomes obligatory on him to part her with kindness. (Tasrih‑bi‑lhsan). If he leaves himself (well and good but if he denies) the Judge will act on his behalf in separating her. (Al Badai' wal Sanai, Vol. II, p. 323 by Kasani‑Printed in Egypt 1910). FAZLE‑AKBAR, J.‑‑I have had the advantage of reading the Fazle‑Akbar, judgment prepared by my learned brother S. A. Rahman, J. As 1 entirely agree with the lint of reasonings in his judgment, I concur in the order proposed by my learned brother. S. A. MAHMOOD, J.‑This appeal by Special Leave is by M h1 mood; .l Mst. Khurshid Bibi against the dismissal of her second appeal by the High Court, which raises for decision an important question of law, namely, whether a Muslim wife, whose husband refuses to divorce her, can be granted a decree for dissolution of marriage by a Court by khula, if she satisfies the Court that it is impossible for the spouses to live together in amity, and to perform their marital duties and obligations, enjoined on them by Islam. 2. I have had the advantage of perusing the elaborate and exhaustive judgment, recorded by my learned brother S. A. Rahman, J. after extensive research into the sources of Islamic. Law, the original texts, Ahadith and opinions of eminent Jurists, Le gists and Juris‑consults, and though I concur with his conclusions and have little to add to the wealth and weight of authority quoted by him, I would, in view of the importance of the ques tion involved, like to state some reasons of my own. 3. The question arises for decision out of these facts. Mst. Khurshid Bibi's Nikah with Muhammad Amin was performed in her minority. In exchange, her brother was married to his sister. On the consummation of the marriage, the spouses lived happily together, but her happiness did not last long. Since there was it off spring of the wedlock, Muhammad Amin took a secoi‑id wife, and the seed of bitterness was sown, which grew and flourished. Within twenty days of the second marriage, their relations became strained. She .demanded a separate house and though he promised it to her, he failed to fulfil his promise complained of maltreatment at his. hands. There arose such differences between them that Muhammad Sharif (P. W. 2) her brother, took out warrants under section 100, Criminal procedure Code, and she left his house, which had become a prison for her. The respondent's father convened two Panchayats, but efforts at reconciliation between the spouses failed. She brought a suit for dissolution of her marriage with him, and he instituted a suit to restitution of conjugal rights. Her suit was dismissed, but her husband's suit was decreed against her on the 21st of January 1960. Muhammad Amin visited Chak No. 380/J. B., where she resided with her parents, to realise, as he says, costs awarded to him in his suit. Mst. Khurshid instituted the second suit the out of which this appeal arises, on the 22nd of February 1960, against her husband alleging that at her house, on the interven tion of the brotherhood, he had orally divorced her on the 29th of January 1960, agreeing to give her a deed of divorce on the following day, but had not kept his promise. She accordingly prayed for a declaration that having been divorced by him, she was no longer his wife, and in the alternative, for a decree for dissolution of her marriage by khula, in consideration of he giving up of the dower, since it bad become impossible for the spouses to live together as husband and wife. She also alleged that Muhammad Amin respondent herein had n= t incurred any expense on his marriage with her. 4. Muhammad Amin denied that he had orally divorcee her, or that she was entitled to dissolution of her marriage khula, their relations being neither so unhappy nor so strained as to make it impossible for them to live together. He also claimed that he had spent Rs. 2,000 on his marriage with her. He was opposed to divorcing her, even if she were to give up her 5. On the above pleadings, four issues were framed. The first issue relating to the jurisdiction of the Court and the second as to the suit being barred by res judicata, having been given up by the learned counsel for the respondent herein, tile remaining two issues in contest between the parties were:‑ (3) Whether the defendant had divorced the Plaintiff by an oral talaq? and (4) Whether the plaintiff was entitled to a khula divorce, i so, on what consideration? The trial Court decided issue No. 3 against her, disbelieving her story of oral divorce by the respondent herein, and on the fourth issue came to the conclusion that with the defendant marrying a second time, resulting in protracted litigation, the parties had come to such an impasse, that there was no likelihood of their being restored to harmonious relationship, since a deep gulf of differences had arisen between them. The plaintiff's filing the second suit for dissolution of marriage clearly showed that she was determined not to live with him, or to go to his house. Islam preferred separation rather than a married state in name only. Therefore, the Court decreed the plaintiff's suit, dissolving her marriage with the respondent herein in exercise of her right of khula. In Muhammad Amin's appeal, the District Judge held that it was not possible to believe that immediately after the dismissal of her suit, the respondent herein would divorce her, and observed that if it was true that he had changed his mind, which was not likely in the circumstances of the case, he would have given her a divorce in writing. Regarding the fourth issue, all that he stated was that it was not a case in which khula should be granted, for the. plaintiff had not come to Court with clean hands or with a straightforward story, and there appeared to be substance in the contention of the defendant that it was a case of zid (obstinacy) on her part, because of his second marriage. In her second appeal, the question of oral talaq was not re agitated. The learned Single Judge of the High Court was of the view that as the sister of the respondent herein was married to a brother of the plaintiff‑appellant, he could not afford to be inconsiderate or cruel towards her for fear of reprisal, and if the defendant could not provide a separate residence for her, it was for lack of means. It seemed to him that she was not prepared to live with her husband, because he had re‑married, but this was not a ground for khula divorce. She had not even stated anywhere that she was prepared to forego her rights for the sake of khula divorce. The case Mst. Bilqis Fatima v. Najam ul‑Ikram Qureshi had, in his view, no application to her case. Her appeal was, therefore, dismissed in limine. 6. In the Petition for Special Leave to Appeal by Mst. Khurshid Bibi, her learned counsel, relied on the Full Bench' decision of the High Court in Mst. Bilqis Fatima v. Najam‑ul Ikram Qureshi, and stressed that she was entitled to a khula divorce, for all that was required of the plaintiff was to express a seriousness in support of her demand, and that whether the demand was reasonable or not, was not a relevant question at all, and the High Court was wrong in taking the view that the said decision did not apply to the facts of the case. The Full Bench has held in the case, on which he relied, that as regards dissolution of marriage the husband can effect dissolution himself by pronounc1ng a divorce, while the wife has to approach the Court, and she is to get a dissolution only if the Court regards further continuance of the marriage as not, proper; but if it does regard continuance of marriage as improper, there is no further limitation on its jurisdiction to dissolve the. marriage. The instant case has been referred to the full Court in view of conflict' "f opinion between the above‑cited Full Bench decision and the earlier decision of a Full Bench of the Lahore High.Court in Mst. Saeeda Khanum v. Muhammad Sami, which took a different and stressed the necessity of the husband's consent for divorce. 7. The case of the appellant for dissolution of her marriage with the respondent herein in exercise of her right of khula based on such discord, hatred and aversion, as makes impossible for the spouses to live together, and to perform the marital obligations. It is argued that it is not simply case of the appellant objecting to the' second marriage of the responder herein, but of such bitterness, hatred and irreparable breach their relations, subsequent to his second marriage fiat it has become impossible for her to live with him, and she had to seek dissolution of her marriage, and it is evident that, in to circumstances of the case, the spouses cannot teller a, husband and wife. It was claimed by the appellant in her stat ement that soon after his second marriage, the respondent here. began to beat her and gave her no maintenance, nor allowed to meet her parents. He even wanted to marry her against her will to his brother. She also feared her life at his hands. A this forced her to inform her parents, and her brother took a warrant under section 100, .Criminal Procedure Code, and also was thus released from confinement. He did not even, agree, to her demand, to give an undertaking in writing that he would pay her maintenance, and would not maltreat her or marry her to his brother, and it was impossible for them to live together, The respondent herein admitted in his statement that in about twenty days after his second marriage,. their relations became strained, and she wanted a separate house for her resident. This he had promised, but he contended that he could be fulfil his promise for lack of means. He had to concede, at to same time, that he earned a salary of Rs. 200 per month and was appropriating the produce of 13 acres of his land, which was in the name and possession of his father. He admitted that he owned two houses, one of which was occupied by him and the other was leased out at Rs. 20 per month. Thus, he w in a position to provide a separate residence to the appellant, he were so minded, but he did not keep his promise, who shows a lack of regard and consideration for her. He also admit ted that disputes arose and have subsisted between them since about four and a half years. The dispute is now more than six years old, and although the brother of one is related to the sister the other, a compromise or a settlement of the differences despite the convening of Panchayats has not been possible between that They have lived apart from each other, and it is not possible to accept the statement of the respondent herein that the relations are not so strained and they can live together amicably Even when he went to her village it was to recover costs of h suit and not to bring her back. It is clear enough that he dot not care for or need her, for she has riot borne him any children . which his second wife has. An idea of the bitterness in the relations can also be had from the fact that within six months his second marriage, she regarded her stay with him as confinement, and she was recovered from his possession on warrant under section 100, Criminal Procedure Code. Since then she has lived with her parents. Their relations have been further embittered by protracted litigation. Notwithstanding to dismissal of her first suit for dissolution of marriage, she instituted within a few days of the dismissal of her first suit, a second for dissolution of the marriage, which shows a determination on her part not to live with him. The advent of his second wife to monopolise his love and affection has created a serious rift in the relation between the spouses, and in the circumstances of this case, it is crystal clear that the rift is irreparable. 8. The learned Single Judge of the High Court in stating That Mst. Khurshid Bibi had nowhere stated that she was willing to forgo her rights for the sake of khula divorce, ignored her averment in Paragraph 5 of the plaint that she was willing to give up her dower to obtain dissolution of her marriage, but it was not accept to the husband. The question of law has, therefore, to examined in the circumstances established that it is impossible the spouses to live together, and to perform their marital obligations towards each other, and that there is a clear offer by the appellant to give up her dower as a consideration for the dissolution of her marriage by Khula by the Court. 9, The learned counsel for the appellant has contended that the Holy Qur'an having by Verse 2:229 (Sura Baqr) conferred on women right to obtain dissolution of marriage by khula and the right being equally established by Shariat, Mst. Khurshid Bibi is, in the circumstance a established entitled to a decree for dissolution of marriage from the Courts, which have replaced the Qazi, as interpreted by the Full Bench in Mst. Bilqis Fatima v. Najam‑ul‑Ikram Qureshi. .It is emphasised that the Courts in Pakistan are bound to give effect to the correct interpretation of this verse, regardless 'of the opinions, which may have been expressed by some of the Juripts, for the Qur'an enjoins obedience to God, as the duty of all muslims (ati-ullah-wa-ati-ur-rasool). It was argued that as Verse 2:229 was not placed before nor was considered by the Full Bench. in deciding Mst. Saeeda Khanum v. Muhammad Sami, which holds that incompatibility of temperaments, aversion, or dislike cannot form a ground for a wife to seek dissolution of her marriage at the hands of a Qazi or a Court, but is to be dealt, with under the powers possessed by the husband as well as the wife under Muslim Law, as parties to the marriage contract, and it was also not placed before the Division Bench in Mst Umar Bibi v. Muhammad Din (1 L R 1944 Lah. 542) these cases are easily distinguisher and are not correctly decided. He also stressed that the conclusion in the two cases that it was not possible &:r a Court to grant a khula divorce. unless the husband consents to it, was expressly dissented from in the later Full Bench case of Mst. Umar Bibi v. Muhammad Din. The learned counsel referred us to page 158 of Urdu translation of Bedayat by Allama Ibne Rushud (an independent thinker and philosopher) published by Idarat‑ul‑Muslemin, Rabwah, in which having stated the meanings of khula, and the conditions in which it was permissible, the learned Author expressed the view that. "And the philosophy of khula is this, that khula is provided the woman, in opposition to the right of divorce vested in man. Thus, if trouble arises from the side of the woman, is given the power to divorce her, and when injury is received from the man's side, the woman is given ‑ the right to obtain khula". 10. The learned counsel for the respondent herein conceded that dissolution of marriage by khula is permitted in Islam, but emphasised that it was essential for the husband to pronounce a talaq for khula to take place, because firstly khula signifies an agreement between the spouses for dissolving a connubial connec tion in lieu of a compensation paid by the wife to the husband out of her property, by which he is induced to liberate her as stated at page 112 of Hamilton's translation of Hedaya, 2nd Edition by Grady; secondly, because it is a talaq irreversible, which is pronounced by the husband; and, thirdly, because in the Qur'anic Verse 238 in Part XX of the Holy Qur'an reproduced below is stated that the tie of marriage is in "his" meaning "husband's" hands: "And if you divorce them before you have touched them, but have settled for a dowery, then half of what you have settled shall be due from you, unless they remit, or her,. in whose hand is the tie of marriage, should remit. And that you should remit is nearer to righteouness. And do not forget to do good to one another. Surely, Allah sees what you do." The learned counsel also drew our attention to some commentaries of the Holy Qur'an taking the view that the person in the expression "person in whose hand is the tie of marriage". means the husband, but this view is not universally accepted. Some Commentators express the view that they refer to the guardian of the woman, which is more consistent with the context. He not only sought support from Tafseer‑i‑Mazhari, Inaya, which is a commentary of Hedaya, Raddul Muhtar, Tafseer‑ul‑Medarik, Tafseer‑ul‑Ahmadiya and Tafseer‑i‑Kabir for the contention that khula means talaq‑i‑barn, i.e., an irreversible divorce, but also referred to certain Ahadith with a view to prove that if the Holy Prophet in ordering the release of the wife by khula directed the husband to give her talaq, the pronouncement of talaq by the husband is a necessary condition of khula. 11. This suit was instituted on the 22nd of February 1960.1 when section 2 (ix) of the Dissolution of Muslim Marriages Act VIII of 1939 (repealed by the West Pakistan Muslim Personal Law (Shariat) Application Act V of 1962, on the 31st of December 1962) provided that divorce may be claimed on any ground recognised as valid for the dissolution of marriage under the Muslim Law. The Subordinate Courts, the District Judges any, the Judges of the High Courts, in Pakistan, occupy a position akin to that of a Qazi, since they could effect a divorce on any ground on which it could be granted under the Muslim Law Mst. Umar Bibi v. Muhammad Din (1 L R 1944 Lah. 542). 12. The basis and foundation of khula is Verse 2.229 of the Holy Qur'an, though the word khula finds, no mention therein or in the Holy Qur'an. It has been translated as: "Divorce must be pronounced twice; then either retain them in honour or release them with kindness. And it is not lawfull for you that you take back from women anything out of what you have given them unless they .both fear that they cannon observe the limits imposed by Allah. But if you fear that the cannot keep within the limits prescribed by Allah, then it is no sin for either of them in what she gives up to be free, (i.e., ransomes herself). These are the limits imposed by Allah, Transgress them not. For who so transgresses Allah's limits] it is they who are the wrong‑doers." 13. It is accepted by the Jurists and Commentators than, "you" in the words "if you fear" in the relevant verse refers to ulil‑amt, and includes the Qazi, who represents the community for ` adjudication of disputes between the parties. Ample authority in, support of this view having been quoted by S. A. Rahman, J. in his judgment, it is unnecessary for me to repeat it here. I may, however, add that the words (if you fear) by which the relevant part of the verse commences, also appear in the well known verse 35, section 6, Chapter IV of the Holy Qur'an in the context of shiqaq (schism or breach) between the spouses :‑ And if you fear a breach between the two, then appoint an arbiter from his people and an arbiter from her people; if they both desire agreement, Allah will effect harmony between them; surely Allah is knowing Aware." Here also it is generally accepted that the word "you" refers to ulil‑amt. The word "you" can have no reference to the spouses, who are referred .to in the relevant verse as "they two" and "them two". Therefore, the verse, in the relevant part, reads:‑ "But if the Qazi fears that they will not be able to keep within the limits prescribed by Allah, then it is no sin for either of them in what she gives up to be free." 14. The following conclusions follow from a careful analysis of the verse:‑ 15. Firstly, the words "if you fear" involve by necessary implication a reference to the Qazi and adjudication by him. The occasion for a reference to him arises only where the husband refuses to release his wife, when she demands a divorce, for if the matter is mutually agreed upon between the parties, the husband will divorce her, and there will be no reference to the Qazi, and no occasion for him to arrive at the conclusion that the parties will not keep within the limits of Allah. In consequence, the verse is a rule of decision in cases, where the husband refuses to release his wife, and is not in express terms applicable to cases of khula by mutual agreement where there is no reference to the Qazi. In khula, under the verse, the husband is permitted to accept what the wife may give him to be free and this is an exception to the general rule stated in cases of divorce by the husband in verse 2:229 and verses 19 and 20 of Sura Al‑Nisa that it is not lawful for him to take back any part of what he has given to the wife, but it is lawful "if the Qazi entertains the fear". Therefore, the verse contemplates an adjudication by the Qazi as justification for the husband's accepting what his wife gives him for being free. The provision of adjudication in the verse is evidence of Divine wisdom, for it ensures on the one hand that there are not too many, too frequent and unrestricted dissolution of marriages (and thus there need be no fear of frequent breaking of family ties, as in was expressed by M. Jan, J. in Mst. Saeeda Khanum v. Muhmmad Sami), and on the other that the wife is not oppressed in order to deprive her of her property. Dr. Sabuni in his book "Madi Hurriat‑uz Zaujain Fittalaq" at page 572 states:‑ "A large section of Muslim Jurists believe that khula is lawful only if there is dislike on the part of the wife so that the husbands do not start oppressing their wives to make them seek khul, so as to get back the property they gave them." All this does not mean that khula by mutual arrangement is not lawful, for as stated in Hedaya, the justification for such khula is in the words of the verse "there is no blame on them two in what she gives up to be free." 16. Secondly, it confers a right and a privilege on the wife to seek dissolution of marriage. Khula is thus a right conferred on the wife. In the prior verse 2.228 the Holy Qur'an itself mentions Z "women have rights against men similar to those that men have against them, according to the well‑known rules of equity". The opinion of Allama Ibne Rushud that khula is a right of the wife has already been cited. Ameer Ali in his book "Muhammadan Law", Chapter 6, Volume II, at page 466, of 1965 Edition has emphasised that previous to Islamic Legislation the wives had no right to claim dissolution of marriage on any ground whatsoever, and as a rule neither the Hebrews nor the pre‑Islamic Arabs recognised the right of divorce for women, but the Qur'an (meaning verse 2:229) allowed them this privilege. Mian Sir Abdur Rashid, Retired Chief Justice of Pakistan, as Chairman of the Commission on Marriage Laws, has, in his report, reached the conclusion that the consensus of opinion is that Islam has granted a right of khula to. the woman, if she foregoes the mehar or part of it, if it is demanded by the husband. Maulana Muhammad Ali in his book "Religion of Islam" states that the right of the wife to claim divorce is not only recognised by the Holy Qur'an and Hadith, but also in fiqh. The view stated in Aziz Ahmad's Muslim Law at page 235 also is that the Court has the power to grant khula. if it is so moved by the wife, Kaikaus, J. also relied on a similar opinion of a living Author, Maulana Abul A'la Maudoodi in his book "Haquq‑uz Zaujain", and though the latter's views on questions of Muslim Law, are entitled to respect, his opinion is not so weighty as of those, who are no more amongst us, as the possibility of a change in his opinion cannot be ruled out. Al-Khafif in strongly supports the right of the wife to khula when discord between the spouses is established. The right is not, however, an absolute right by which the wife can herself dissolve the marriage, but is a controlled right. The success of her right depends upon the Qazi's reaching the conclusion that the spouses cannot live within the limits of God, this being the rule of decision, provided for his guidance. 17. Thirdly, the verse, by making it not lawful for the husband, where he pronounces a talaq to take back anything g from the wife and permitting it where she seeks khul, indicates that talaq is in a category different from khula. There is a clear distinction between the two, for khula is the right of the wife, and talaq is the right of the husband. A talaq is pronounced by the husband on his own, but khula under the verse is sought by the wife, and is effected by the order of the Qazi for a consideration to be paid by her, The nature and character of talaq and khula are different, though their effect may be the same, namely, dissolution of the marriage tie, but it will be shown later that their respective effects are even different, and khula effects a dissolution of marriage and not a talaq. In cases of khula by mutual agreement, a talaq is usually pronounced by the husband, but this is pronounced to effect a dissolution of the marriage tie, and though it is in the form of a talaq, what is brought about is in effect a khula. Khula is not the same thing as talaq and the two cannot be equated. 18. Fourthly, as the verse confers a right on women to seek dissolution of marriage, names the Qazi as a Judge of the cause and provides the rule of decision, it virtually adds a ground for dissolution of marriage, and thus authorises the Qazi to dissolve the marriage in appropriate cases, even without or against the will of the husband. When it confers a right to sue on women, and provides a forum and a rule for dissolution of marriage, it is the Qazi and not one of the parties to the cause, who can have the authority to decide the cause, for otherwise, tfie reference of the cause to him, serves no purpose and the verse has no objective. If the husband's consent is necessary, .the verse has no efficacy or usefulness as a right conferred on women. 19. Obviously, therefore, the dissolution cannot rest on the consent of the husband, but must depend on the order of the Qazi. When he has the power to order dissolution of marriage and to enforce his decision in cases of li'an, ila and inin and where the husband becomes Mafqood‑ul‑Khabar. (absent without news) even without and against the consent of the husband, as is supported by Hedaya, Raddul Muhtar, Ahkam‑ul‑Qur'an and Jasas, and when dissolution can take effect without his pronouncing a talaq, the Qazi must have the power to dissolve the marriage by khula also, independent of the husband's consent and his pronouncing a talaq Ibne Hazan in "AI‑Mohalla" supports the Qazi's right to effect separation by khula after efforts at reconciliation have failed. 20. The verse is thus, in particular, a rule of decision in cases where reference to the Qazi is necessitated by the refusal of the husband to divorce his wife and in such cases dissolution is by the order of the Qazi and is not dependent on the consent of the husband or on his pronouncing a talaq. There are no words in the verse indicating that the consent of or talaq by the husband is necessary for khula. 21. The recorded traditions of khula by the Holy Prophet and the Caliphs lend strong support to the above conclusions. The classical instance of khula is that of the wife of Sabit bin Qais to be found in various collections of Ahadith including Bukhari, Tirmizi, Abu Daud, Nisai and Ibne Maja, but there are two versions, one referring to Jamila and the other to Habiba. Some Commentators say that they relate to two different wives of the same Sabit. The instance of Jamila, as stated in Mishkat‑ul Mussabih, (Volume II, page 703) is that Jamila went to the Holy Prophet and said that she did not blame her husband Sabit bin Qais about his character or piety, but she feared "heresy in Islam". The Holy Prophet asked her if she was prepared to return the garden given to her as dower, and on her replying "yes, Oh Prophet of God, and even more the Prophet said : "No more, but you return the garden that he gave you". She agreed and the Prophet said to Sabit : "Take the garden and divorce her". According to another version in Bukhari, when she agreed to return the garden, the Prophet ordered Sabit and he separated her. The other tradition of Habiba, as stated by Imam Malik and Abu Daud, is that one day early in the morning, when the Holy Prophet came out of his house, he found Habiba standing there. He enquired from her what the matter was. She said "I and Sabit can never pull on together." When Sabit appeared, the Holy Prophet said : "This is Habiba daughter of Sahal. She has stated what God wished she should state." Habiba said "Oh Prophet of God,.‑let Sabit take from me whatever he has given me, for that is all with me." The Holy Prophet ordered Sabit to take back what he had given her, and to release her. In some versions the words used by him are mentioned as "khale sabilaha" and in others "f‑ariqha", which both mean "divorce her". About this very instance, there is another version reported by Abu Daud and Ibne Gharir as coming from Hazrat Aisha, stating that Sabit had beaten Habiba and broken her bone, but it is clear enough that she made no complaint on this score, and demanded dissolution of, her marriage on account of her aversion for his ugliness. The case is one, therefore, of khula in which there was an order of separation by the Holy Prophet: 22. In the days of the Holy Prophet, as reported by Ibne Abbas in Mishkat, Volume II, page 702, Barirah was married to Mughis, who was intensely in love with her, and used to roam about the lanes of Madina, weeping and crying in quest of her. One day the Holy Prophet expressed a wish to her that she should go back to her husband. "Is this an order" asked Barirah, and as the Holy Prophet said : "No, I am only trying to intercede" Barirah did not go back to her husband. This instance has been used in Mst. Saeeda Khanum v. Muhammad Sami as implying that as the Holy Prophet did not force Barirah to go back to her husband, he was not likely to force Sabit bin Qais to divorce his wife. With the greatest respect, it appears to me that this instance instead of reflecting adversely on the efficacy of the cases of Jamila and Habiba, as instances of e khula under the orders of the Holy Prophet, enhances their value The difference between those cases and the case of Barirah is that in those cases the wives approached the Holy Prophet, demandins a dissolution of their marriage, while there was no such demand by Barirah, and the Holy Prophet decided the cases referred try him as head of the State of Islam, and ordered the husband to release them on restoration of benefits conferred. Thus, khula was decreed by the Holy Prophet on the ground that the wives having developed intense hatred for their husband, it had become impossible for them to live with him and to perform their marital obligations. No clearer proof can be had of Qazi's power ant] authority to dissolve a marriage in appropriate case by khula. In the case of Barirah, there being no cause before him as a Qazi or a Judge, he gave no order and merely tendered an advice. Her instance also proves that the Holy Prophet was not in favour of forcing an unwilling wife to live with her husband, where there is fixed aversion. 23. The two instances of khula of the days of Khulafa‑i Rashidin cited by Kaikaus, J., in Mst. Bilqis Fatima v. Najam‑ul‑Ikram Qureshi, are these:‑ (1) A woman along with her husband appeared before Hazrat Umar, a companion of the Holy Prophet, wanting a divorce, and though he advised her to live with her husband, she refused. The Caliph shut her up in a dungeon, full of refuse, and when, after being kept there for three days, she was brought before him, asked her how she had fared. She replied: "I swear by God, I have never passed more peaceful nights." This answer is clearly indicative of what misery and torture her life had become with her husband. At this, Hazrat Umar said to the husband: "Give her khula even if it be in lieu of her earrings" (Kushf‑ul‑ghuma). (2) Another instance is of, the days of Hazrat Usman, a companion of the Holy Prophet. This is the case of Rabi, daughter of Maooz. When she approached him for separation from her husband, Hazrat Usman ordered her husband to take all that she had and to grant her a divorce. 24. If in each of these cases, the Holy Prophet and the Caliphs, in ordering dissolution, directed the husband to pronounce a talaq, this was the form in which it was decreed, but from the form of the order it cannot reasonably be argued that pronouncement of a talaq by the husband is a necessary condition of khula, though it could have been urged that the Courts should follow the same form in making ,the order. So long as the order was made by the Holy Prophet and the Caliphs in exercise of the authority of the State or Judge, the form of the order is not destructive of the source or substance of the authority of the Qazi, nor makes the pronouncement of talaq a necessary condition of khula. The question of the form in which the order should be made by the Courts is not one of substance and is not, in any case, of any particular importance, in the instant case, as the Courts have power, by their own authority, to dissolve a marriage on the grounds stated in section 2 of the Dissolution of Muslim Marriages Act; VIII of 1939, and if they were to order khula under subsection (IX), a talaq by the husband is not necessary. 25. The word "khula" literally means to put off, as a man is said to khula his garment, when be puts it off. Verse 187, Chapter 11 of the Holy Qur'an recites "you are p garment or apparel for them and they are garment for you", meaning that the husband is a garment for the wife and (1) vice versa. " Khula ", therefore, should mean the putting o or doffing of the clock of marriage. According to the Kifaya~, Volume II; page 278, "khula" means to put off, as a man is said to khula his garment, when he puts it off. According to Durrul Mukhtar (at page 256), it means in law "demis sion or laying down by a husband of his right and authority over his wife for an exchange to take effect on her acceptance by means of the words khula, and it is sometime validly effected by the words of sale and purchase. Its condition is that of talaq or repudiation, and its effect one irrevocable repudiation".‑ According to Hedaya (page 112 of Hamilton's Translation by Grady), relied upon by the learned counsel for the respondent, "khula" signifies an agreement between the spouses for dissolving a connubial connection in lieu of a compensa tion paid by the' wife to the husband out of her property. The reason stated in it in justification of such khula is that whenever enmity takes place between husband and wife and they both see reason to apprehend that the ends of marriage are not likely to be answered by a continuance of their union, the woman need not scruple to release herself from the power of her husband, by offering such a compensation, as may induce him to liberate her, because the word of God says: "No crime is imputed to the wife or her husband, respecting the matter in lieu of which she hath released herself"‑(these words Are from verse 2:229), that is to say, , there is no crime in the husband's accepting such compensation, nor in the wife's giving it". The discussion in Durrul Mukhtar, Hedaya, the relevant Chapter in Fatawa‑i‑Alamgiri, Volume II, in which a large number of authorities, a'ima and their disciples are quoted as to the manner in which dissolution of marriage by khula takes place, the consideration for khula, its quantum, the validity of consideration, and rights which flow from such a divorce impart the impression that divorce by khula is an act of the husband, and riot a unilateral exercise of a right by the wife. It is also a necessary condition of knula that a desire for separation should emanate from the wife. In Mst. Saeeda Khanum v. Muhammad Sami the Full Bench of the Lahore High Court, following the above, defined khula as dissolution of a marriage by agreement between the parties for a con sideration paid or to. be paid by the wife to the husband. The emphasis in the above opinions of the Jurists and Com mentators on mutual agreement between the spouses, indicates the category of cases to which they relate. These are cases of khula without reference to a Qazi or Court, where without the consent of the husband and his pronouncing a talaq, dissolu tion of. the marriage tie is not possible. It is these con siderations which provide the reasons for their opinions that khula is the act of the husband, and it cannot ,be effected without his pronouncing talaq. 26. There are thus two classes of cases of khula: (1) by mutual agreement, and (2) by order of the Qazi or Court, where dissolution of marriage takes place by E the husband's pronouncing a talaq in the first class of cases, and by the order of the Qazi or the Court in the second Sanction for khula under the orders of the Qazi is to be found in the express words of verse 2:229 of the Holy Qur'an, which is the word of God. Cases of khula by anutual agreement do not strictly fall under the terms of the verse itself, but what is so effected is also khula and justification for such cases has been found by the Jurists by a process of reasoning and deduction from the words of the verse, referred to in Hedaya and mentioned above, or from the contract between the parties. The principle so deduced amply justifies the conclusion drawn by the Jurists that khula by mutual agreement is permitted in Islam, but the concept of khula derived from instances of mutual agreement should not, in any event, be used to confuse the issue, and made to bear on cases of khula under the orders of the Qazi, which are expressly covered by the verse of the Holy Qur'an. 27. S. A. Rahman, J. in his judgment has admirably brought out the difference in the views of the Jurists and pointed out that these differences arise owing to the fact that two situations come into existence : (1) where khula takes place as a result of the mutual consent of the spouses, which is technically called mubarat. In such cases no reference to the Qazi is necessary, and (2) where the husband disputes the right of the wife to obtain separation by khula, a third party must decide the matter, and it wilt have to be adjudicated upon by the Qazi, and any other interpretation of the ,Qur'anic verse would deprive it of all efficacy as a charter granted to the wife. He has also detailed the trend of present legislation in Muslim countries, of the world indicating ijma, in modern times tending to recognise the right of the wife to obtain dissolution of her marriage. 28. The Holy Qur'an, which is the embodiment of Divine will, is the fundamental source of Islamic Laws. The laws in it are decrees and commandments of Divine Origin and not only have super‑eminence over other sources of Muslim Law, but can not be changed or altered by human agency. Verse 2:229 falls in the category of Qur'anic Law. Ahadith come next in importance. The Hanafi Muslim Jurisprudence recognises ijtehad and ijma' as the remaining two sources of Islamic Laws but they are subsidiary reasoning really falling under a. single category, ijtehad being by individual scholars and ijma' by consensus of scholars indulging in ijtehad in anyone period. The opinions of Jurists and Com mentators stand on‑no higher footing than that of reasoning of men falling in the category of secondary sources of Muslim Law, and cannot, therefore, compare in weight or authority with, nor alter the Qur'anic law or the Ahadith. If the opinions of the Jurists conflict with the Qur'an and the Sunnah, they are not binding on Courts, and it is our duty, as true Muslims, to obey the word of God and the Holy Prophet (ati‑ullah‑wa ati‑ur‑Rasool). Verse 2:229, which expressly covers cases where the husband refuses to divorce his wife, has been interpreted above, and the opinions of Jurists expressed in case of khula, whether by mutual agreement or otherwise which are to the contrary, are not binding on us, particularly if they are expressed in cases of khula by mutual agreement, which are somewhat different from those by ,judicial decree, where talaq is not pronounced. 29. Even on the question whether khula is to be equated with talaq or whether it is a form of dissolution of marriage, there nin is difference of opinion among the a'ima and Jurists. Ibne Rushud states in Badaya‑tul‑Mujtahid that most of the Ulema, Imam Malik and Imam Abu Hanifa are of the opinion that khula is equivalent to talaq, but Imam Shafi'e, Imam Ahmad. Imam Daud, and out of the companions. Ibne Abbas, express the view that khula amounts to jiskh‑i‑nikah, i.e. cancellation or dissolution of marriage and not talaq. Imam Shafi'e also states on a different occasion that if the husband intended a talaq, even in a mutual agreement of khula, it would operate as a talaq, and if he had in tended it to be a fiskh‑i‑nikah, it would operate as such. Ibne Hajar Asqlani in his book (Alderaya‑fi‑Takhrija‑Ahadith‑ul‑Hidaya wa Fathul‑Bari) favours the opinion expressed by Ibne Abbas and doubts the authenticity of the hadith, which equates it with irreversible divorce relying on a tradition of the Holy Prophet that the wife of gabit bin Qais on the ground of khula was ordered by the Holy Prophet to pass one period of menstruation as her 'iddat, which was different from that in talaq. He reiterates it in Talkhisul Habir Volume III, page 205. The Hedaya and other authorities make no difference between khula and talaq. 30. Thus, the Ulema and Jurists are not all agreed that khula is equivalent to a talaq, but those who have so stated (Imam Malik and Imam Abu Hanifa) and others have ignored the injunctions and prohibition in verse 2:229 and Verses 19 and 20 of Sura Al‑Nisa of the Holy Qur'an, for if it is a talaq, it is not lawful for the husband to accept what the wife gives him to be free, as a consideration for knula but if it is khula, it is lawful. It is lawful, because it is the wife who exercises her right of khula. Therefore even if a talaq is pronounced to effect khula, what is effected all the same is khula. This view is no; only consistent with the Qur'anic injunctions, but has the advantage of saving cases of khula from the prohibition in the Holy Qur'an and this conclusion must be preferred. But even if it be conceded for the sake of argument that where a husband pronounces a talaq, it is equal to irreversible divorce, khula by judicial decree is still not equivalent to a talaq, because a talaq is not pronounced by the husband therein, nor is. it a pre‑requisite‑ of khula in such cases, 31. In interpreting verse 2:229, it has been shown that khula is so characteristically different from talaq that the two cannot be equated. Talaq is the right of the husband and khula is the right of the wife. Khula is sought and procured by the wife either from the husband or from the Qazi by payment of consideration. She either buys her freedom by inducing her husband to release her or persists in her demand before the Qazi, which results in the dissolution by the Qazi. Therefore, khula is an act of the wife in exercise of her right and cannot legitimately be said to be an act of the husband. The opinions and definitions of khula, adopted by Jurists are misleading when they convey the impression that khula is the act of the husband, and they do not also include cases of khula by the Qazi or the Courts, but if it is defined as putting off or doffing of the cloak of marriage by the wife, this definition will cover not only cases of khula by mutual arrangement, but also those which are enforced by the Qazi and the Courts, and will also not violate the prohibition in the Holy Qur'an. There is, therefore, no justification for the Jurists equat ing khula with talaq. or treating khula as an irreversible divorce, instead of a separation of the spouses. 32. Khula by a judicial decree, is thus a dissolution of marriage by the Qazi at the demand of the wife and for this conclusion, support is available in the opinions of Imam Shafi'e, Imam Ahmad, Imam Daud, and out of the companions of Ibne Abbas, who call it fiskh‑i‑nikah i.e.. dissolution of marriage and not a talaq. Ibne Hajar Asaiani supports their view. That khula is in fact a dissolution, and not talaq, is shown also by the fact that after khula the right of the husband to take back the wife does not remain, as it does in the case of a talaq‑i‑raja', and the period of iddat is also different in either case. In the case of Jamila, tha Holy Prophet ordered her to observe one period of menstruation as her iddat, which is different from talaq. On a discussion of the relevant Ahadith, Shankani in "Kitab‑ul‑Khula", Volume III, page 260 of his celebrated work "Nail‑ul‑Autar", has reached the conclusion that khula is not exactly a talaq, but is in a different category. 33. The pronouncement of a talaq by the husband even in cases of khula by mutual agreement is not essential in every case, because it has been held by the Courts that for the purpose of dissolving a marriage under khula or mubarat, which is dissolution of marriage by mutual agreement for a consideration to be paid by the wife, when there is mutual aversion, it is sufficient that the husband should propose to pronounce a talaq or otherwise to dissolve the marriage for a consideration, and that the wife should accept the proposal, in which case it is not necessary that talaq should be pronounced by him, because the contract itself dissolves the marriage (Muhammadan Law by Tayabji, Third Edition, sections 162 and 163). 34. The question whether the wife is not entitled in appropri ate cases to demand a khula divorce from the husband in face of his refusal finds no express treatment in the treatises of Hanafi Jurists, who merely content themselves by saying that divorce is the right of the husband. As is stated by S. A. Rahman, J. in his judgment, Dr. Sabuni has summarised the various opinions on this question at page 621 of his book "Madi Hurriat‑uz‑Zaujain Fittalaq" and in particular, to what is related from Umar‑ibn‑Al Khatab through the authority of Behaqi, that "when women desire khul, do not deny it", Sha'rani in his book "Almizan‑ul Kubra", Volume II, page 117, also states: "Imams agree in that the woman, if she dislikes her husband because of his ugliness or misconduct, she has a right to seek khul' by payment of compensation." Malik, Auzai and Ishaq are of the opinion that no Hakams are required, nor permission of the spouses. Kufies, Sha'fi and Ahmad have said that their permission is necessary as the right to divorce is in the hands of the husband. If be permits, well and good, otherwise the Court will divorce on his behalf. 35. It was argued before us that as the parties must be presumed to belong to the Hanafi Sect, the case must be decided according to I the doctrine of khula, as interpreted by the Hanafi Jurists. It has already been pointed out that the problem, where the husband refuses to divorce his wife on her demand, finds no express treatment in the treatises of Hanafi Jurists, who content themselves` by saying that talaq is the right of the husband, which is undeniable, but their observation has no material bearing on cases of khula by judicial decree. There is also no justification for a strict doctrination, ruling out the opinions of Imam Malik, Imam Shafe'i and Imam Ahmad bin Hanbal, who head the School of Sunni Fiqh, along with Imam Abu Hanifa, for the Imams never claimed finality for their opinions. When there exist opinions of Shafie's, Malikies and Hanbalies in cases, where it is impossible for the spouses to live together and the husband is reluctant to release his wife, and when these opinions are consistent with the Qur'anic injunctions, there can be no valid objection to relying on them. 36. There are no basic ideological reasons militating against the view that the Holy Qur'an in conferring a right on woman to seek dissolution of marriage and providing the forum and rule of decision, authorised the Qazi to dissolve a marriage by khula. In Islam, marriage is a contract and not a sacrament, and whatever sanctity attaches to it, it remains basically a contractual relation. ship between the parties. Islam, recognising the weaknesses of by human nature, has permitted the dissolution of marriage, and II does not make it an unseverable tie, condemning the spouses to a life of helpless despair. The Qur'anic legislation makes it clear that it has raised the status of women. The Holy Qur'an declares in Verse 2:228 that women have rights against men similar to those that men have against them. It conferred the right of khula on women as against the right of talaq in men. On the one hand, it put fetters on the unbridled exercise of power of divorce by the husband by providing for appointment of arbiters in verse 35, section 6, Chapter IV, in case of breach between the spouses, and on the other, conferred a right on women to seek dissolution of their marriage before the Qazi, the success of the right depending upon his order. The trend of Qur'anic legislation is clearly in favour of the freeing of the wife, where the marriage tie cannot serve the objects of marriage, namely, sukun, moaddat and rehmat (peace of mind, love, kindness, sympathy and compassion) specified in verse 21, Chapter XXX, Part 21 of the Holy Qur'an. If its objects cannot be served by a marriage, should it continue, though it be purposeless and even harmful, or is it not better that it be dissolved, so that the evil consequence of an impossible marriage relationship are avoided? 37. When the Holy Qur'an conferred on women a status of equality with men in their rights by stating (women have rights against men similar to those that men have against them according to the well‑known rules of equity), it was natural and logical that she should have been conferred the right of khula, as compared to the right of talaq existing in men. Verse 2: 229 of the Holy Qur'an requires that the husband should either retain the wife in honour according to the well‑recognised custom or release her with grace 3L‑‑b so that detaining them wrongfully is sinful. It further enjoins on the husband not to cling to the woman in order to cause her injury Allah . further commands in verse 19, Sura Al‑Nisa (iv):‑ "Nor should ye detain them that ye may take away a part of what ye have given them." Thus the Holy Qur'an prohibits the wrongful or unwilling retaining of women, and favours their release. According to a hadith "let no harm be done, nor harm be suffered id Islam. If the Qazi is satisfied that relations between the spouses are so embittered that .a marriage relationship between the spouses consistent with the tenets of Islam is not possible, and a reconciliation is out of question, the husband's clinging to her would be injurious to her, and since she would be prejudiced by ‑the continuance of the marriage, the express words of the Holy Prophet clothe the Qazi with ample authority to dissolve the marriage "If a woman be prejudiced by marriage, let it be broken off" (Sahi‑ul‑Bukhari), as quoted by Ameer Ali in Muhammadan Law, Volume II (1965 Edition) at page 478. 38. The nature and extent of the power and authority of the, Qazi to order dissolution of marriage is to be found in the) following words of Mujalla‑tul‑Ahkam :‑‑‑ ,.. (Hakim (Judge) is that person who is appointed by the Sultan) to finally adjudicate upon and determine disputes and claims between the contestants according to Shariat). Mabsoot, Volume V, at page 97 states:‑ (The Qazi has the power to prevent zulm by effecting separa tion). Hedaya makes this further clear by stating in Volume II at page 323 as follows:‑‑ "As Allah has enjoined that the husband should either retain the wife according to the well‑recognised custom release her with grace if she is not kept accordingly, it is necessary for him to release her with grace, or the Qazi will release her on his behalf." Raddul Muhtar, which is a ,commentary of Hedaya, states that if the husband refuses to divorce his wife, she will make an application to the Qazi, and if her husband's refusal to divorce her is zulm, the Qazi will act on his behalf for relieving her of zulm, and it is permissible for the Qazi to dissolve the marriage. 39. The views, which I have quoted above, give the power of dissolution to the Qazi, as agent of or acting for the husband, in the belief that the words "in whose hands is the mar;rage tie" in verse 238 of Sura Baqr, Part II of the Holy Qur'an, refer to the husband, and it was the husband alone, who had the power of divorce, and this power could only be exercised, by him or his' agent. The Commentators are not all agreed that these words necessarily refer to the husband, for they refer to the guardian of the woman, but even if they do, they only mean that he has the power to dissolve a marriage which is a truism, for it is he who can pronounce a talaq, but these words do not imply that the Qazi does not have the power to dissolve a marriage in appropriate case, or that the power in the Qazi, where it exists, can be rendered nugatory by the husband's refusal to divorce his wife. The Qazi ordinarily derives his authority from the State and not from the husband (though some Jurists by reason of confusion of thought hold to the contrary) when he orders dissolution as, e:g. in ila, Ilan, inin, etc. That talaq by the husband is not necessary for dissolution of marriage by him is illustrated by the cases where the husband disappears and becomes Mafqudul Khabar. There, as in other cases, the Qazi can dissolve the marriage tie at the instance of the wife without the husband pronouncing a talaq. Therefore, authority vests in the Qazi to dissolve a marriage independent of the consent of the husband, whose refusal to pronounce a talaq makes no difference to his powers and authority. When a wife seeks khula from the Qazi, he is named as a Judge by the Qur'anic verse 2:229 and he is thus empowered to decide the cause, independent of and even without the consent of the husband. His authority to dissolve a marriage by khula, where the wife seeks khula, and where he is satisfied that continuance of marriage tie is improper, harmful or likely to condemn the Spouses to a life of adultery, Sin and misery, and that the parties cannot keep within the limits of Allah, has no limitations of consent of the husband, or his pronouncing a talaq. 40. In Mst. Saeeda Khanum v. Muhammad Sami, the learned A. C. J. (as he then was) relied on two traditions as showing that they were inconsistent with the Holy Prophet's decreeing a divorce in the case of Jamila. These traditions are:‑ (1) "Soaban reported that the Messenger of Allah said: Whichever woman asks for divorce from her husband without fault, the fragrance of paradise is unlawful for her." (2) "Ibne Omar reported that the Apostle of Allah said: 'The most detestable of lawful things near Allah is divorce." These traditions are obviously intended to serve as a check on a moral plane against the free and wanton exercise of either the right of divorce by the husband or the right of khula by the wife, but do not forbid or make sinful either the pronouncing of talaq or the seeking of divorce by the wife from a Qazi. Sir Rowland Wilson in his book "Anglo‑Muhammadan Law" has this to say about the first tradition:‑ "The hadith in Tirmizi (1,368) that a woman who demands khula without necessity, will lose heaven, implies that legally she can make good her demand, possibly, without other reason than alleged aversion or in modern equivalent incompatibility, but at least when 'she satisfactorily shows to impartial parties the impossibility of a happy married state." 41. The learned A. C. J. by referring to the traditions of Jamila, as narrated by imam Razi in his commentary on the Holy Quran entitled "Tafseer‑ul‑Kabir", Volume II, under Verse 35, Chapter IV of the Holy Qur'an, also held that it was a case of khula by mutual agreement and not by judicial decree, for it was evident that as the case came before the Holy Prophet, the wife on the one side expressed a desire for separation from her husband, and the husband on the other, put forward a claim for return of the garden he had given to her, without protesting against his wife's behaviour, and indeed by asking for a considera tion, he expressed his willingness that the marriage bond should be broken in return for an advantage to be received by him. Since the Holy Prophet discovered that there was agreement between the parties, he gave a direction, which stands as a guidance for all other Muslim married couples for all times. It should be noted that the learned A. C. J., though holding that it was not an order, has himself characterised it as a "direction" by the Holy Prophet: The learned Judges in Mst. Umar Bibi v. Muhammad Din accepted without question that it was the Holy Prophet who ordered Sabit to divorce his wife in words "talaqaha talliqa," which mean "give her an irrevocable divorce". With the utmost respect to the learned A. C. J. it may be pointed out that though his conclusion is feasible, it is more reasonable to infer judging by human nature conduct, that Sabit was forced by cir cumstances to ask for the return of the garden. He must have asked for the garden not because he wanted to divorce her, and preferred the advantage of return of the garden to retaining her, for it is clear beyond doubt that he 'was intensely in love with her, but because it must have become clear to him that there was no way out of the situation, as the' Holy Prophet was bound. to separate Jamila from him. Hakim in "Al‑Mustadrak", Shaukani in "Nail‑ul‑Autar", relying on Darkatani's version, and Ibne Abdul Bar in "Al‑Istiab" categorically state that it was the Holy Prophet who ordered the separation. Ibne Hajar Askalani shares this opinion, and doubts the authenticity of the hadith ‑specifying this case as one of talaq. 42. In verse 35, section 6, Chapter IV, the Holy Qur'an provides that if there be shiqaq between the spouses, Hakama or arbiters be appointed, one from each side. This was intended to be a restriction on the free exercise of the right of divorce by the husband, and was in the nature of a protection afforded to the wife. The Jurists disagree on the question whether the Hakama have authority to effect separation of the spouses as would appear from page 265, Volume 19 of Umdatul Qari, printed by Muniapial Press in Eyght and this power was held to be lacking in Mst. Umar Bibi v. Muhammad Din and in Mst. Saeeda Khanum v. Muhammad Sami, and this was one of the reasons for taking the contrary view, but the question is hardly of any importance for the interpretation of‑Verse 2:229. because even if the opinion be formed that if Hakama are not satisfied about shiqaq and they do not agree as to separation, a divorce cannot be effected by them unless autborised by the husband the conclusion cannot affect the power in the Qazi to dissolve a marriage, where he has the necessary apprehension. The lack of authority in the Hakama cannot affect the authority in the Qazi (and the Court,) to dissolve marriage by a khula which is conferred by a Qur'anic verse. 43. The reasons stated by the learned A. C. J. in Mst. Saeeda Khanum v. Muhammad Sami have been examined with care by Kaikaus, J. In Mst,. Bilqis Fatima v. Najam‑ul‑Ikram Qureshi. With his conclusions, I agree with respect. The fact that neither verse 2:229, nor instances of khula, except that of Jamila, were placed before the Full Bench which decided Mst. Saeeda Khanum v. Muhammad Sami or, before the Division Bench, which decided Mst. Umar Bibi v. Muhammad Din, and the reasons recorded by Kaikaus, J, afford sufficient justification for departing, I say so with great respect, from the contrary view taken in the two cases. 44. The instant case is one in which Mst. Khurshid Bibi has sought dissolution of marriage under subsection (ix) of section 2 of the. Dissolution of Muslim Marriages Act on the ground of khula, which is recognised as valid for the dissolution of marriage under Muslim Law, and it has' been shown that khula can be ordered by the Qazi even against the will and consent of the husband and without his pronouncing a talaq. It has been established that it is impossible for the spouses to live "within the limits of God", which phrase means the performance of marital o0bligations while living together. The purpose of the appointment of Hakama has been served by the Panchayats which were arranged by the respondent's father, and as all efforts at reconciliation have failed, the appointment of Hakama for the same purpose will be futile. Mst. Khurshid Bibi appellant is, therefore, entitled to a decree for dissolution of marriage under the terms of verse 2:229. 45. Verse 2:229 of the Holy Qur'an implies that the wife has to pay compensation to the husband in order to obtain dissolution of marriage by khula. This conclusion clearly emerges from its words "what she gives up to be free" or "by what she ransomes herself". According to Hedaya; it is abominable on the part of the husband to take from his wife more than what he had given or settled upon her, namely, her dower. Jamia Saghir states that if the husband takes more than the dower it is strictly legal, as the text of the Holy Qur'an is expressed generally, but the reason for its Justification is that being based on contract, it is not illegal. This is legal, because the wife agrees to give more than what she received in lieu of the marriage. 46. The instances of khula, which have been cited above, show that the wife has to return the benefits of the marriage and illustrates that the wife has to refund no more than what she has received, for though Jamila was willing to give more than the garden given to her by her husband, the Holy Prophet said: "No, only the garden." It is a further check on the wife's exercise of the right of khula that, as a general rule, she cannot retain the benefits, i.e., the consideration of the marriage, the same as the husband cannot take back whatever he has given to the wife in consideration of the marriage, if he divorces her, which is a corresponding restraint on his right. Therefore, it is necessary for the Court to ascertain in a case of khula what benefits have been conferred on the wife by the husband as a consideration of the f marriage, and it is in the discretion of the Court to fix the amount of compensation, as is indicated by the instances of khula cited above. 47. In the instant case, the wife has offered to give up the dower and the evidence and the pleadings of the parties indicate that it has not been paid to her. Therefore, the question remains whether she has received any other benefit‑ of the marriage, which she has to restore. In other words, what are the terms on which a decree for dissolution of her marriage should be granted to her? Though the first Court granted her a decree for dissolution of her marriage, it did not consider or indicate the terms and conditions on which it was to operate. Even though the question was specifically included in the fourth issue, the parties have not led any evidence as to the benefits conferred by the respondent herein on the appellant as a consideration of the marriage, or as to the amount of consideration, which the respondent is entitled to be restored as a condition of the grant of khula. On this question, all that we have on the record is the assertion of the appellant in the plaint that the respondent herein incurred no expense on the marriage and of the respondent herein in his written statement that he incurred an expense of Rs. 2,000 on the marriage, but this was not stated in evidence, which is silent on the question of what were the benefits conferred by the respondent on .the appellant in consideration of the marriage. Since the possibility cannot be ruled out that if Rs. 2,000 were spent on the marriage, the expense may include the cost of benefits conferred on the wife, I agree that this case be remanded to the trial Court with a direction to allow the parties to lead evidence as to the benefits, if any, conferred by the respondent herein on the appellant as a consideration of the marriage, and that the parties bear their own costs throughout. K. B. A. Appeal accepted.