1997 PLP 985 (CLC)

"

14. That, therefore, the plaintiff from 23‑8‑1993 is residing with her parents and the defendant refused to take her back at his house, due to the aforesaid conduct of the defendant the plaintiff developed serious hatred in her mind against the defendant and she has gone such an extent that she prefer to die rather than to live with the defendant as his wife.

15. That under the circumstances the plaintiff cannot live with the defendant within the limits prescribed by God. The plaintiff, therefore, offers to relinquish her dower in consideration of Khula' /divorce, hence this suit." In the written statement which was filed on behalf of the petitioner, it was denied that the respondent No. l had been maltreated or that they could not live as husband arid wife within the limits prescribed by Allah. It was further averred, with regard to the claim for Khula' as follows: "However, if the plaintiff still insists upon under instigation and influence of her father for relinquishment from marital bondage by way of Khula', then the consideration shall be surrendered of her entire amount of Mehr (dower) in favour of the defendant plus Rs.1,00,000 at least as pecuniary compensation to the defendant for the marriage expenses he had to undergo in equilibrium to the financial status of parents‑in‑law in addition to Rs.50,000 as special damages towards Azalai Hasiat‑e‑Urfi' to the defendant on account of unfounded/unwarranted and baseless allegations made against the defendant in the two family suits filed. " In the evidence, the respondent No. l in her statement deposed as follows with regard to the claim for Khula:‑‑ "On the next day 23rd August, 1993 the defendant beat me and drove me out of the house and I came to my parents' house in two clothes without anything. Since then the defendant has not contacted me or my family and has not sent any maintenance also. I want Khula' from the Court and am willing to forego the dower amount and not maintenance. I cannot live with the defendant as his wife under any condition. I have filed the case on my own." The above statement made in the examination‑in‑chief was not controverted through any suggestion to the contrary in the cross‑examination. In his own deposition, the petitioner has mainly referred to the attempts for reconciliation made by him and other relatives. It was further deposed that the respondent No. l had left the house on her own volition; about the amount of dower, however, it was stated that the same was paid in two instalements. The petitioner also disputed existence of any differences between his family members and the respondent No. l . As to Khula', the following statement was made:‑‑ "If the plaintiff insists upon khula', I am willing to grant her, on the payment of Rs.50,000 which I spent on Valima etc." In the cross‑examination the petitioner stated that he had obtained receipt whereby the respondent No. l had acknowledged payment of dower to her. But such receipt has not been produced despite such offer. In the cross examination, the petitioner gave further details about the efforts made by him and his relatives for re‑conciliation. On consideration of the evidence, the learned VIIIth Civil ‑and Family Judge, Karachi Central, has been ple4sed to decree the suit for maintenance at the rate of Rs.500 per month for September, 1993 till the subsistence of marriage and has also granted decree for Khula' in lieu of her claim for dower amount of Rs.25,

000. The allegations with regard to maltreatment which were urged in support of claim for dissolution of marriage on the ground of Khula', were however, disbelieved by the learned Family Judge. Before' me the learned counsel for the petitioner has assailed the impugned judgment on the ground that the learned Family Judge has not considered the evidence correctly and has not given findings as are required to be recorded for dissolution of marriage by way of Khula'. It is further urged that the learned Family Judge ought to have pressed her satisfaction and recorded the finding that the couple could not live together as husband and wife within the limits prescribed by Allah and further that the refusal to grant Khula' would result in forcing the respondent No. l into hateful union. In support of his submission the learned counsel referred to the judgment reported in PLD 1959 Lah. 566 Mst. Bilqees Fatima v. Najmul Ikram Qureshi (PLD 1990 Kar. 239) Syed Dilshad Ahmed v. Mst. Serwat Bi and 1992 CLC 937 (Muhammad Abbasi v. Mst. Samia Abbasi). The learned counsel also referred to 2:229 and 230 and 4:19 and 20 from the Holy Qur'an to submit that dissolution of marriage by way of Khula' does not, confer any unfettered right upon women to seek divorce which is dependent upon consent of the husband. Then authorities cited as above show that Khula' is the right of wife provided she is prepared to forego her right of dower an4 return all the benefits received by her from the husband subject to satisfaction of the Court that the wife has developed such an aversion that she cannot live with the husband within the limits prescribed by Allah and that the refusal to grant Khula' would amount to forcing her to live in a hateful union. The principles for grant of Khula' are quite authoritatively laid down in the illustrative judgment in Mst. Khursheed Bibi v. Baboo Muhammad Amin, PLD 1967 SC 97 wherein after reference to a number of authorities and the above‑referred verses from the Holy Qur'an, it is laid down as follows:‑‑ "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 'women have rights against men similar to those that men have against them, according to the well‑known rules of equity'." However; such right is circumscribed by the requirement of the Court being satisfied that the spouses cannot live as husband and wife within the limits of Allah. A woman's not maintaining the limits ordained by Allah is her neglecting or avoiding of her performance of her duties towards her husband as well as not obeying him at all. Likewise, the husband failing to provide protection and maintenance to his wife, is failure to keep the limits prescribed by the 4lmighty. The limits prescribed by Allah would mean the directions regarding a happy social life. Such views find support from a Single Bench judgment of this Court cited by the petitioner's counsel in Dilshad Ahmed (supra) where the learned Judge with reference to Ion Rushd: Bidayatul Mujtahid observes: "The verse, thus means, if there be such a dislike between the husband and the wife that it becomes difficult to lead their life in mutual love and happiness the wife may, on payment of compensation, obtain Khula' from the husband. That is, Khula' is permissible when there is no possibility for happy union between the couple ‑ and there is apprehension that due to their extreme differences they shall not be able to live in accordance with the dictates of Sharia. However, if the fault lies with the husband, in the fulfilment/obligations to his wife, the acceptance of compensation for Khula' by him is forbidden in Sharia. The propriety of Khula' is established from the verse in the event of such a difference between the couple that their living together becomes impossible. According to Ion Rushd the philosophy of Khula' is that it is a right within the power of wife similar to the husband's right of divorce. Thus, when life becomes troublesome for the wife she may make use of her right of getting Khula', effected. Likewise, when some trouble arises for the husband due to the wife, he may make use of his right of evidence. " In the present case, the learned Family Judge appears to have considered the various assertions made on behalf of the parties. The discussion under Issue No.2 which pertains to grant of Khula' cannot be read in isolation from rest of the judgment. The view formed by the learned Family Judge is based on consideration of entire record before her pertaining to maltreatment and maintenance. It is also an admitted position that the spouses had been living separately for almost 19 months since before the filing of Family Suit on 16‑5‑1995. It is the case of respondent No. 1 that the petitioner did not make any attempt to bring her back. However, on behalf of the petitioner, it is urged that efforts were made by petitioner as well as his relatives to bring about re‑conciliation. Assuming that the petitioner's assertion with regard to attemptal re‑conciliation is correct, such factor would operate against him to show that the respondent No. l has developed aversion to an irretrievable extent and she is not prepared to live with the petitioner as his wife. It is also an admitted position that the petitioner has not provided any maintenance to the respondent No!'1 during the entire period during which the respondent No. l has lived with her parents. The fact that the husband and wife have lived separately for a long time and maintenance too has not been provided by the petitioner, can be a strong factor to assess as to whether the spouses can live together within the limits prescribed by .Allah. The learned Family Judge appears to have reached the conclusion in favour of grant of Khula' on consideration, inter alia, of about, factors. Such conclusion cannot be termed unlawful or without jurisdictions so as to call for interference in exercise of powers under Article 199 of the Constitution. I am supported in this view by judgment in the case of Muhammad Rafi v. Atta Ullah Kausar and others, reported in 1993 CLC 1364 wherein a learned Single Judge of Lahore High Court has observed as follows:‑ "Right to claim dissolution of marriage on the ground of Khula' is a, right equal to the right of Talaq conferred upon the husband except with the difference that the wife has to satisfy the Qazi that she cannot live with her husband within the limits laid down by the God Almighty, as held in case of Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC

97. In this case, admittedly, the parties are living separately for the last 1‑1/2 years. Serious allegations have been levelled by the respondent against the petitioner although it has been held that they are not proved. The fact, however, remains that the respondent is sticking to her stand and in spite of best efforts for arriving at a compromise mode prior to the filing of the suit, during the pendency thereof as well as this writ petition have not succeeded. The parties are not blood relations. Necessary inference which can, therefore, be drawn is that there is no possibility of compromise between the spouses, who are young in age. The respondent is a human being and not a chattel. It is not possible to force her to live with the petitioner as her wife. She is the best witness of the circumstances on the basis whereof she has categorically stated on oath before the reamed Judge, Family Court that she cannot live with the petitioner within the limits laid down by the Almighty Allah. She being adamant not to enter into a compromise in spite of best and hectic efforts made in this behalf by the well‑wishers of the parties at all levels, it stands established that there is no possibility of reconciliation between the spouses. In such a situation refusal of dissolution of marriage will definitely result in the crossing of limits of Almighty Allah by the respondent. Consequently, the learned Judge, Family Court has rightly held that it is a fit case where the marriage should be dissolved on the principle of Khula." The petitioner's demand for additional compensation contained in the written‑statement and his deposition rather militates against his bona fides. In my view the principle is that a wife can buy her freedom upon payment of compensation and in the event of mutual agreement, parties can agree upon any figure. However, once the Court is approached, the command of Shariah is very clear about the extent of compensation money. It cannot be fixed at a figure higher than the dower amount and return of benefits received by wife from her husband. However, in case fault is found on the part of husband, the Court can reduce the amount of compensation and may even grant decree for Khula' without any compensation at all. I find support for such view from the judgments in Mst: Parveen Begum v. Muhammad Ali (PLD 1981 Lah. 116), Mst. Zahida Bi v. Muhammad Maqsood (1987 CLC 57), Mst. Shagufta Jabeen v. Sahwat Bi PLD 1990 Kar. 239 and Dilshad v. Mst. Musarat Nazir (PLD 1991 SC 779). The learned counsel for the respondent No. l has drawn my attention to the averments, made in the objections filed on behalf of the respondent No. l supported by a certificate dated 8‑8‑1996 filed therewith, to the effect that after the grant of Khula' through the impugned judgment dated 25‑4‑1996, intimation was sent to the Punchayat Committee and a certificate of confirmation has been issued on 8‑8‑1996. The learned counsel for the petitioner urged in reply that‑on 19th August, 1996, the operation of the impugned judgment was suspended by this Court which continued to operate till 24‑3‑1997 when the above‑referred ad interim order was recalled. Since the certificate of confirmation was granted prior to the suspension of the impugned judgment by this Court, such certificate cannot be treated to have illegally been issued. The contention of the learned counsel for the respondent No. l to the effect that the marriage stands dissolved by way of Khula', therefore, is not without substance. The present proceedings are not in the nature of appeal so as to be treated as continuation of the original proceedings. The intention of the Legislature by not providing for appeal in cases of dissolution of marriage by way of Khula', is quite manifest and the same shall not be allowed to be defeated by resort to proceedings under Article 199 of the Constitution. It may be added that during the present proceedings, the petitioner's counsel had filed application C.M.A. No.32 of 1997 with a prayer that the impugned judgment having been pronounced by a Female Judge who was aged less than 40 years, was void and liable to be ignored altogether. Such application was dismissed by me summarily since the issue stands decided by judgment of the Federal Shariat Court in the case of Ansar Burney v. Federation of Pakistan reported in PLD 1983 FSC

73. The learned counsel for the petitioner has not been able to point out any misreading or non‑reading of evidence amounting to miscarriage of justice so as to warrant interference under the Constitutional jurisdiction. In the circumstances, no case is made out for interference and the petition is, accordingly, dismissed in limine. As a result of dismissal of the petition, all the pending applications also I stand disposed of. A.A./Q‑8/K Petition dismissed.