P L D 1968 Lahore 411 (PLP)

Balqis Fatima v. Najam‑ul‑Ikram P L D 1959 Lah. 566 ref. C. M. Anwar for Appellant. M. A. Khadim for Respondent. Dr. Javid Iqbal as amicus curiae. Dates of hearing : 5th and 26th April 1967. Mst. Sharfan, respondent, filed a suit against Siddiq, the appellant, for the dissolution of marriage on the ground that he had falsely accused her of immorality by alleging that the latter was living an adulterous life; that he failed to maintain her for more than two years before the institution of the suit; that he was treating her with cruelty and was habitually assaulting her, and that the appellant had been associating with women of ill -repute. The appellant controverted all these allegations and pleaded that he had rightly accused the plaintiff‑respondent of immorality. The learned Civil Judge found all the issues against the respondent. The plaintiff respondent had not asked in her plaint for the dissolution of marriage on the basis of khula`, but on her behalf this plea was raised at the time of arguments. The learned Civil Judge did not accept this plea and held that the respondent by living an adulterous life could not make that a basis for the dissolution of marriage on the doctrine of khula`. The learned District Judge in appeal did not disturb the finding of the learned trial Judge on the allegations which were made in the plaint, but he dissolved the marriage on the basis of khula'. This is the second appeal.

2. The wife is entitled to the dissolution of marriage on the restoration of what she received in consideration of marriage if q the Judge apprehends that the parties will not observe the limits of God. It was so held in Balqis Fatima v. Najm‑ul‑Ikram (P L D 1959 Lah. 566). The learned District Judge has not adverted to this aspect of the case. He dissolved the marriage of the parties on the basis of khula' without considering whether the respondent had received any benefits in consideration of the marriage and was she prepared to restore the same. The Supreme Court in Khurshid Bibi v. Muhammad Amin (P L D 1967 S C 97) dissolved the marriage on the principle of khula` but sent the case back to the trial Judge "with the direction that 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 hus band 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 judgment of the learned District Judge suffers from a serious defect.

3. I am, however, not in agreement with the view taken by the learned District Judge in this case. He has not disputed the finding of the learned trial Judge that the respondent was living in adultery with one Jalal Din. The trial Judge came to this finding on the appraisal of the evidence which was produced by the parties and he particularly relied on the evidence of Haji Allah Din, the father of the respondent and Ghulam Rasul, her brother. The learned District Judge observed: "Even if the finding of the learned Senior Civil Judge with respect to the issues framed in the suit were not interfered with, I would bold that this was a fit case for dissolving the marriage of the parties on the ground of khula` which could be urged at any stage of the case without raising this plea" It appears that the learned District Judge was of the opinion that the wife living in adultery can, on this question, obtain the dissolution of marriage by invoking the doctrine of khula`. If this view is accepted, a woman by her self‑confessed guilt of adultery will become entitled to the dissolution of marriage. An unwilling wife, who otherwise is not able to make out a case for dissolution of marriage on the grounds contemplated in the Dissolution of Muslim Marriages Act (VIII of 1939), will ask the Court for khula` by making an admission of adultery with someone, whom she may be interested to marry. To concede that marriage can be dissolved on this ground will run counter to the concept of the marriage as a sacred tie. It will disrupt the family life which will have serious repercussions on the creation of a happy and healthy Islamic society. The wife to satisfy her lust, will succeed in getting divorce, but it would expose the children of the spouses to the ridicule of society and will also be a cause of invisible suspicion of the character of the children of such a lady, whether from the first or from the second husband. It is for this reason that an absolute right is not conceded to a wife to claim khula` on the restoration of the benefits which she may have received from her husband. In Balqis Fatima v. Najm‑ul‑Ikram, Kaikaus J., expressed himself in these words: There is an important limitation on her right of khula`. 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 dissolution. 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". It is thus obvious that the Judge has to consider the circumstances of each case before he may dissolve the marriage. The fact that the rift exists and the Qazi comes to the conclusion that the parties will not observe the limits of God by itself is not sufficient for the dissolution of marriage on the principle of khula`. The Judge will have to consider as to what is the cause for such a rift. If the cause is attributable to the husband and the Judge arrives at the finding that the parties will not live a harmonious life, he may dissolve the marriage. On the other hand, if the husband is not F responsible for it, and the wife has also not created any such situation herself for bringing about the rift, but there an, circumstances in existence which render it difficult for the spouses to observe the limits of God, the Judge may proceed to dissolve the marriage. The Court in arriving at its finding may take into consideration the temper, nagging, sarcasm, speaking at each other in other people's presence and reverting to past faults which should have been forgiven and forgotten. These things consider ably destract from the harmonious marital life. The dissolution of marriage in such cases will have no repercussion on either the wife or the husband.

4. The Judge, however, will not dissolve the marriage for a reason for which the wife is exclusively responsible. In Balqis, Fatima v. Najm‑ul‑Ikram, Kaikaus, J., reproduced a portion of "Haqooq‑uz‑Zaujain" by Maulana Abul- Ala Maudoodi as: "As regards the abuse of power thus granted to the spouses, the law places all reasonable restrictions on the exercise of their power, but then to a great extent leaves the matter to the good sense of the party, and really none but the party or the Almighty can determine whether the need of the party is reel or whether he or she is only a seeker after sexual enjoyment." It is manifest that a wife, where it is established that she was seeking khula` only for her sexual enjoyment, is not entitled to the dissolution of marriage. The author has indeed said that it is for the party or God Almighty to determine whether it was a genuine claim for the dissolution of marriage, but I am of the view that the Judge can always go into this question. If it is established before him J that the wife was seeking the divorce to have a sexual enjoyment the Judge will not dissolve the marriage because it will amount to placing a premium on an immoral life. Such a course is not permitted in Islam. Islam aims at doing right and sets examples for others to do right and it emphasises that the wrong and injustice should be defeated. A great sanctity is attached to a marriage in Islam. It is a most intimate communion and the mystery of sex finds its highest fulfillment when intimate spiritual harmony is combined with the physical link. Islam tries to maintain the married state as far as possible. It does not countenance anything which may imperil such a life and the future of the wife and children. The Judge in considering the claim of the wife for khula` has to do justice. Islam strictly enjoins that he is to stand firm for justice and has to act as in the presence of God. Therefore, if a separation is inevitable the parties should not throw mud at each other. Such a prohibition is in the interests of good and honourable lives for both sides, and in the interests of a clean and honourable social life which is possible only if it is without public or private scandals.

5. There is yet another aspect of the case. The respondent is asking for khula' on the basis of Qur'anic injunctions and the Islamic Law. She is living in adultery and it is argued on her behalf that in the circumstances if she returns to her husband he would not treat her justly and for that reason there would not be a harmonious married life. Under the Islamic Law she has rendered herself to a penalty, and the Qazi was competent to inflict the punishment on her. According to the Holy Qur'an "the adulteress and the adulterer, flog each of them, giving a hundred stripes, and let not pity for them detain you in the matter of obedience to Allah, if you believe in Allah and the Last Day, and let a party of believers witness their chastisement,". (24:2). We, however, cannot impose punishment on her in the absence of any authority conferred by law on us to do so. It will be anomalous, in such circumstances, to dissolve the marriage on the basis of her self‑confessed adultery, and thus to invoke in her aid the Islamic Law, when she has rendered herself liable on the same facts to a penalty under that Law, but it is not possible for the Courts to enforce that law against her. I am, therefore, of the opinion that if the allegation made by the wife on the basis of which she claims dissolution on the principle of khula` is such as exposes her to a criminal liability under the Islamic Law but it is not possible for the Courts to impose it because there is no provision for doing so, it cannot furnish the basis for the Court to dissolve the marriage on the principle of khula`.

6. The learned District Judge in dissolving the marriage has stated that the respondent had been driven to immoral ways of life by the appellant and observed that "a Muslim woman who has been driven to such immoral ways of life should be saved from perpetuating that evil course if her separation , from her husband can help her in achieving that result. In the present case, the respondent had admittedly accused her of adultery with Jalal Din, consequent upon which she was publicly defamed resulting in natural hatred for her husband. This complaint was brought by him on 17‑8‑59 and was dismissed on 26‑10‑1959, while the present suit was instituted on 10‑4‑1961, and since then she is having this protracted litigation with respondent which has t indicated the fact that she has no regard for him and is bent upon seeking a separation from him. To expect that after such prolonged agony of litigation she can be brought round to a reunion with her husband resulting in peaceful and harmonious life will be a sheer impossibility. It would not be putting a premium on her immoral life if the doctrine of khula' was allowed to be invoked in the circumstances of the present case but it was the strained relations and the protracted litigation between the parties resulting from the hatred which she had developed against her husband on account of that accusation that the separation of the parties was being sought on the basis of khula` ". He has led himself into error in observing t4at the respondent was driven by the appellant to the immoral way of life. A compromise was arrived at between the parties at1d the respondent. started living with her husband but she again left him and was openly living with Jalal Din. The trial Judge has come to a definite finding that she was living in adultery with Jalal Din. The learned District Judge without adverting to the finding of the learned trial Judge and setting it aside has made the above observations which are not warranted. The evidence on the record conclusively establishes that the respondent has been living in adultery for which the appellant is in no way responsible and if the appellant initiated any proceedings against her he cannot be blamed for the same. The finding of the learned District Judge based as it is on a mistaken assumption that toe respondent had been driven to an immoral life by the appellant and that he had defamed her is not sustainable.

7. For the foregoing reasons I accept the appeal, set aside the judgment and decree of the first appellate Court and dismiss the suit of the plaintiff‑respondent. The parties shall bear their own costs. A.H. Appeal accepted.