1984 PLP 1465 (CLC)

(On appeal from the judgment and decree of the High Court, dated 7th January, 1984 in Civil Appeal No. 16 of 1983). (a) Mahammadan Law _‑‑Khula'‑Wife if adamant that she has developed a fixed aversion to her husband and all attempts at reconciliation have failed, there is a little choice for Court except to grant a decree, for, the consequences in adopting any other course may be disastrous‑Wife is entitled to Khula` as of right if she satisfies the conscious of Court that it will otherwise mean forcing her into hateful union‑Consent of husband is immaterial for Khula` divorce‑Wife's right of Khula` divorce elaborated in detail. Mst. Khurshid Bibi v. Baboo Muhammad Amin P L D 1967 S C 97 ; Shah Wali Ullah of Delhi in Al‑Musawwa‑min‑Ahadith‑al‑Mutta, Vol, '1. p. 16 ; Hadith o/' the Prophet concerning Barairah and Mughis ; Balqis Fatima v. Najm‑ul‑lkram P L D 1959 Lah. 566 and Muhammad Rafique v. Mst. Surta Bi 1981 C L C 208 fol. (b) Dissolution of Muslim Marriages Act (VII of 1939)‑ ‑S. 2 (ix) ‑Khula` is permissible under provisions of Act‑Valid separation can be ordered on payment of Khula' when circumstances foresee that spouces could not live within limits ordained by Holy Qur'an. (c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑ ‑‑‑Art. 42‑Leave to appeal to Supreme Court‑Point not agitated before High Court could not generally be allowed to be raised for first time before Supreme Court. `Khula' divorce for Mst. Kaisar Jan, respondent herein, on payment of Rs. 5,000 was allowed by the civil Court of original jurisdiction Authmuqam, vide judgment and decree, dated 13th December, 1982. On appeal by Muhammad Yusuf, petitioner herein, before the District Judge, Muzaffarabad, the amount of `Khula' was reduced from Rs. 5,000 to Rs. 2,600 vide judgment and decree, dated 9th April, 1983. The High Court, on second appeal by the caveator, on 7th January, 1984, restored the judgment of the trial Court and allowed `khula' divorce on payment of Rs. 5,000.

2. Leave to appeal is sought to assail this judgment of the High Court, inter alia, on the grounds :‑ (i) that `khula' divorce cannot operate without the consent of the husband ;and (ii) that `khula' divorce is even not recognized under the Dissolution of Muslim Marriages Act, 1939.

3. I have given my considered thought to the arguments advanced by Sh. Abdul Aziz, the learned counsel for the petitioner, in support of his contentions referred to above. I regret, I cannot agree with the learned counsel for the following reasons :‑ (a) The superior Courts in Pakistan and Azad Kashmir are in agree ment that if the wife is adamant that she has developed a fixed aversion and if all attempts at reconciliation have failed, there is a little choice for the Court except to grant a decree, for the consequences in adopting any other course may, be disastrous. In this connection I may refer to the following observation from the well‑known case of Mst. Khurshid Bibi v. Babol Muhammad Amin (P L D 1967 S C 97). ". ....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 and Shah Wali Ullah of Delhi in Al‑Musawwa‑min‑Ahadith‑al‑Maatta, (Vol. 11, p. 160) goes to the length of saying that `even if she obtains khula' 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) khula'. Referring to the hadith of the Prophet concerning Barairah and Mughis, the learned Judges concluded that This shows that a woman cannot be compelled if she has a fixed aversion to her husband to live with him.' From the attitude of the parties it had become clear to the Family Court that there was no possibility of the spouses living together. That being so, the grant of decree on the ground of khula' cannot be questioned." (b) This issue also came under consideration in Balqis Fatima v. Najm‑ul‑Ikram (P L D 1959 Lah. 566). In that case, after discussing different authorities on the controversy, it was observed :‑ "Held (by the Full Bench) that the wife is entitled to a dissolution of marriage on restoration of what she received in consideration of marriage if the Judge apprehends that parties will not observe the limits of God. This is not equivalent to granting a right to wife to come to the Court at any time and obtain a khula' if she is prepared to restore the benefits she has received. There is an important limitation on her right. It is only if the Judge apprehends that the limits of God will not be observed, that is, in their relation towards one another, the spouses will not obey God, that a harmonious married state, as envisaged by Islam, will not be possible that he will grant a dissolu tion. The wife cannot have a divorce for every passing impulse. The Judge will consider whether the rift between the parties is a serious one though he may not consider the reasons for the rift. That the wife may go wrong if dissolution is not ordered is rather a reason for grant of dissolution for Islam prefers divorce to adultery. The husband can effect a dissolution himself by pronouncing a divorce, while the wife has to approach the Court and she is to get a dissolu tion only if the Court regards further continuance of marriage as improper, there is not further limitation on its jurisdiction to dissolve the marriage. The verse of the Holy Qur'an which is the basis of the right of khula' is verse No. 229 of Sura Baqr. This verse permits the termination of a marriage by wife passing consideration to the husband. The question for consideration is whether this termination can be effected only by agreement between the husband and the wife or whether the wife can claim such termination even if the husband be not agreeable. The words 'if you fear' being addressed to the State or the Judge, they can only mean that the Judge is entitled to pass an order even though the husband does not agree. Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received. The jurisdiction of the Qazi to dissolve a marriage in case of shiqaq is limited only by what is stated in the Qur'an, i. e. `if you fear a breach' which means that there is real discord between the parties, and in the case of khula' by the words `if you fear that they will not observe the limits of God'. While effecting separation, the Qazi adjusts the financial matters so as to direct a partial or total restoration of the benefits received by the wife. As regards procedure to be followed in enforcing wife's right of khula' the law provides that in matters of marriage and divorce Muslim Law shall apply to the Muslims. If the Muslim law provides a particular procedure for the enforcement of a right of dissolution either we regard that as a mere matter of procedure and having regard only to the substance of the right enforce it by whatever procedure is avail able. But the right of the wife cannot be defeated. Either we should appoint Hakams or we should ourselves assume the jurisdiction of the Hakam in so far as it relates to dissolution for that is a judicial function. The word 'Hakam' is to be regarded in its ordinary sense of Judge or arbiter. One who is only a conciliator is neither a Judge nor an arbiter. Their Lordships were unable to accept the view that the jurisdiction of the Qazi is exhausted by the appointment of the arbiter, that if the effort at reconciliation fails, there is nothing further to be done and that the wife must be forced to live with the husband even though she be unhappy and may be in no way to blame and though the result would be that the spouses 'do not observe the limits of God'." (e) In fact the proposition that the husband's consent is not necessary for khula' divorce has been owned in so many cases and every case need not be reproduced here. This Court, respectfully agreeing with the superior Courts of Pakistan, observed in case Muhammad Rafique v. Mst. Surto Bir(1981 C L C 208) (1) that consent of the husband is immaterial for khula' divorce. (d) The argument that the khula' is not permissible under the provisions of the Dissolution of Muslim Marriages Act, 1939, has also no substance. Under the Dissolution of Muslim Marriages Act a valid separation can be) ordered on payment of khula' and this Islamic concept of separation of marriage had continuously been recognized by all the superior Courts Of Pakistan and Azad Kashm" when circumstances foresee that the spouses cannot live within the limits ordained by the Hold Qur'an. The Dissolution of Muslim Marriages Act clearly allows separation on this ground under section 2 subsection (ix) which reads :‑ "A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds namely :‑ on any other ground which is recognised as valid for the dissolution of marriages under Muslim law." (e) Besides, the above referred points have not been taken before and of the subordinate Courts and, as repeatedly held, a point not agitated before the High Court cannot generally be allowed to be raised for the first time before this Court. The judgment recorded by the learned Single Judge of the High Court shows that the only grievance of the petitioner was that `khula' money has been illegally reduced which grievance was accepted by the High Court. For the above stated reasons I am of the view that it would not be advisable to reopen a well considered and well‑settled proposition of law. This petition for leave to appeal, therefore, stands disallowed with costs. M. Z. M. Petition dismissed.