P L D 1977 Karachi 855 (PLP)

Z. A. CHANNA, J.‑The petitioner, who was married to the respondent some six years back, instituted a suit for divorce against him in 1974 in the Curt of the Family Judge, Larkana, on various grounds, including that he was a gambler, that he used to ill‑treat and even beat her and finally he had driven her out from his house. In the alternative she prayed for divorce by way of Khula'. The learned Family Judge decreed the suit to, dissolution of the marriage by way of Khula' on the condition that the petitioner pays Rs 5,000 to the respondent through the Court within five months. The petitioner preferred an appeal to the District Judge against the aforesaid condition of payment of Rs. 5,000, but the appeal was dismissed by a learned Additional District and Sessions Judge on We ground that the appeal was not tenable. Finding no other remedy available to her, the petitioner has invoked the constitutional jurisdiction of this Court to assail the condition of payment of a sum of Re. 5,000 to the respondent.

2. Mr. Mubarak Hussain, the learned counsel for the petitioner, has assailed the aforesaid condition on a two‑fold ground, namely, that the said condition is contrary to the well‑settled principles of Muslim Law on the subject and that further the passing of the conditional decree is illegal and without legal effect. It may be mentioned here that the respondent has not cared to contest the petition and has throughout remained absent.

3. Before examining the contentions of the learned Advocate for the petitioner it may be pointed out that by reason of the definition of 'person' contained in clause (5) of Article 199 of the Constitution, a writ would lie against a decision of a subordinate Court, if such order is without lawful authority and of no legal effect.

4. Coming to the first contention of Mr. Mubarak Hussain, it may pointed out that according to Al‑Fatawa‑al‑Hindiya, Vol. 11, p. 118, under the Hanafi law ‑ and the parties admittedly are Hanafis ‑ as a general rule, the amount of consideration paid or to be paid for khula' should not exceed the wife's dower or property given to her by the husband if the khula' is proposed by the husband, but if it does, it is disapproved although valid. When the wife has a justification for seeking a khula' divorce, the Muslim. jurists are generally agreed that half of the amount of dower is the proper consideration. However, the Prophet Mohammad (peace be upon him) did not approve of or even allow payment of a consideration greater than the dower in a khula, divorce in the two cases of Jamilah and Habiba who wanted a divorce from their husbands.

5. We may also point out that according to Radd‑ul‑Muhtar, if khula' is due to ill‑treatment by the husband he cannot lawfully take any consideration from the wife because Allah has enjoined on the husbands not to taker, back anything from the wives. This view is bases on the authority of the following verse from the Holy Qur'an (20, Sura‑al‑Nisa).‑ "And if ye wish to have (one wife) in the place of another and you have given one of them a heap of gold, take nothing from it."

6. Our Supreme Court has also considered in depth the principles of khula, in the case of Khurshed Bibi v. Mohammad Amin (P L D 1967 S C 97) and has laid down as follows:‑ "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,.. be may, in law, demand restitution."

7. We may now proceed to consider how the learned Judge of the Family Court came to determine the consideration of khula' as an amount of Re. 5,000 and whether in determining the consideration he has kept to view or acted upon the principles which in Muslim Law govern the payment of award of such consideration. It may be mentioned at the outset that though the respondent ire his written statement opposed the grant of khula' to the petitioner, be made no demand for any consideration. We may also point out that so far as the amount of dower is concerned, according to the petitioner it was only Re. 50, while according to the written statement of the respondent it was more, though he did not specify what its amount was. In any case, whatever was the amount of dower, the learned Judge of the Family Court has not taken it into consideration in determining the amount of consideration for khula', probably because of the lack of certainty as to its amount and his consequential inability to determine the exact amount. In determining the amount of consideration, the learned Judge of the Family Court has taken only the following into consideration :‑ (a) Gold ornaments, valued at Rs. 1,000, given by the respondent to the petitioner at the time of marriage. (b) Other ornaments which the respondent must have given to the petitioner. (c) The fact that after the separation of his marriage with the petitioner, the respondent is likely to marry again and for this purpose he would have to pay considerable bridal money, as in the words of the learned Judge " . . . . .in this part of the country girls are sold away."

8. The learned Judge of the Family Court fell in error in holding that the respondent had, as stated by him in his written statement. given ornaments worth Re. 1,

000. The written statement does not state that the respondent bad given any gold ornaments to the petitioner, but merely states that the respondent had promised ornaments worth Re. 1,

000. There is nothing to indicate that the promised ornaments were in fact given by the respondent to the petitioner. There !s also no mention in the written statement of the respondent that he had given any other ornaments to the petitioner. The view of the learned Judge that the respondent must have given other ornaments to the petitioner is thus based on no evidence and wait a pure surmise without any foundation. As regards the third factor which the learned Judge has taken into consideration, namely the price which the respondent may have to pay for getting the hand of another girl in marriage, in our view this factor cannot at all be considered for the purposes of determining the amount of consideration for khula'. None of the grounds on the basis of which the learned Judge has determined C the amount of consideration for khula' are thus valid in law and this part of the judgment, fixing the amount of consideration therefore suffers from a patent illegality.

9. There is yet another illegality which has been committed by the learned Judge of the Family Court. Although, consideration is a valid and even generally an essential requirement of khula' and such payment D ordinarily is payable immediately. or at an agreed time. the view expressed by Mr. K. N. Ahmad, in his valuable and exhaustive treatise, "Principles of Muslim Law", at page 259, is that the failure of the wife to pay the considera tion does not cancel the khula' but the husband shall be entitled to recover the same from the wife under the law or he may set off the same against any claim that she may have against him.

10. The upshot of the above discussion is that we allow this petition with costs and quash the part of the judgment of learned Judge of the Family Court in respect of payment of consideration. S. Q. Petition allowed.