2004 PLP 17 (CLC)

"All other prohibitions and limits prescribed here are in the interests of good and honorable lives for both sides, and in the interests of a clean and honorable social life, without public or private scandals. If there is any fear that in safeguarding her economic rights, her very freedom of, person may suffer, the husband refusing the dissolution of marriage, and perhaps treating her with cruelty, then, in such exceptional cases, it is permissible to give some material consideration to the husband, but the need and equity of this should be submitted to the judgment of impartial judges, i.e., properly constituted Courts. A divorce of this kind is called Khula".

14. In translation and commentary of this Verse of the Holy Qur'an by Muhammad Asad printed by Dar Al‑Andalus Gibraltar, it is ordained at page 50: "A divorce may be (revoked) twice, whereupon the marriage must either be resumed in fairness or dissolved in goodly manner. And it is not lawful for you to take back anything of what you have ever given to your wives unless both (parties) have cause to fear that they may not be able to keep within the bounds set by God; hence, if you have cause to fear that they two may not be able to keep within the bounds set by God there shall be no sin upon either of them for what the wife may give up' (to' her husband) in order to free herself".

15. Its commentary on the same page at footnote is as follows:‑‑ "All authorities agree in that this verse relates to the unconditional right on the part of the wife to obtain a divorce from her husband; such a dissolution of marriage at the wife's instance is called Khula'. There exist a number of highly authenticated traditions to the effect that the wife of Thabi Ibn Qays, Jamilah, came to the Prophet and demanded a divorce from her husband on the ground that, in spite of his irreproachable character and behaviour, she disliked him as she would dislike falling into unbelief after having accepted Islam". Thereupon the Prophet ordained that she should return to Thabit the garden which he has given her as her dower (Mahr) at the time of their wedding, and decreed that the marriage should be dissolved, (several variants of this Tradition have been recorded by Bukhari, Tirmidhi, Ibn Majah and Bayhaqui, on the authority of Ibn Abbas.) Similar Traditions, handed down on the authority of Aishah and relating to a woman called Hubaybah Bint Sahl, are to be found in the Muwatta of Imam Malik, in the Musand of Imam Ahmed, and in the compilations of Nasa' i and Abu Da'ud (in one variant, the latter gives the woman's name as Hafsah Bint Sahl). In accordance with these Traditions, Islamic Law stipulates that whenever a marriage is dissolved at the wife's instance without any offence on the part of the husband against his marital obligations, the wife is the contract breaking party and must, therefore, return the dower which she received from him at the time of concluding the marriage; and in this event "there shall be no sin upon either of them" if the husband takes back the dower which the wife gives up of her own free will".

16. What emerges from above is that a wife has a right to obtain divorce from the husband and a Judge is obliged to order cancellation of contract of marriage when wife emphatically asserts that she cannot keep the limits set by God. An equality is maintained between the spouses by allowing the wife this right through the intervention of Court as against absolute right of husband to divorce the wife at any time and even without any reason. The wife is similarly empowered to get the marriage cancelled on any reason whatsoever, whether husband is at fault or not. The unfettered powers of husband are counter balanced by the right of wife to obtain dissolution through Court subject to the condition that the husband is not at fault, she is to compensate him and if he is found at fault she is not to pay anything. This right cannot be made hostage to husband's pleasure nor subjected to social or family bounds, except the satisfaction of Court that in case marriage is not dissolved the spouses cannot maintain the limits of God Almighty. However, as against marriage, which is a contract between the spouses only, the dissolution of marriage has the apprehension of affecting the society and the State in case‑ the spouses have minor children, that is why it left to be decided by the Court. The wisdom behind subjecting the wife to seek dissolution through Court therefore, appears to enable the Court to regulate the guardianship and maintenance problems of the minor children or suckling, who remain attached to mother not to father, otherwise multiple social and cultural problems like those faced by Europe and America may arise due to free; friendships separations.

17. The Muslim marriage in essence is a contract as against sacramental concept of Christianity and Hinduism. The Holy Prophet (p.b.u.h.) said, "The stipulations most entitled to be abided by are those with which you are given the right to enjoy the (women) private parts (i.e. the stipulation of the marriage contract).

18. In Bilqis Fatima's case, Justice S.A Mahmood dilating upon subject; held that "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 decision, authorized the Qazi to dissolve a marriage by Khula. Islam, marriage is a contract and not a sacrament and whatever sanctity attaches to it, it remains basically a contractual relationship between the parties, Islam, recognizing the weaknesses of human nature, has permitted the dissolution of marriage, and does not make it an unseverable tie, condemning the spouses to a life of helpless despair. The Qur'an 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".

19. Consequently the consequences arising from rescission of contract have to follow. If the conditions of marriage contract are in writing, those have to be strictly enforced in view of above saying of Prophet (p.b.u.h.) and if these are not in writing, these may be amicably settled between the parties, of course with the aid of their elders or by an order/decree of the Court. As the husband has the unfettered powers of dissolution of marriage by divorce, hence unless otherwise agreed upon between the spouses, the consequences of rescission of marriage by Talaq would be that the wife would be entitled to the entire amount of dower if not already received and other gifts; to the maintenance and residence during the period of Iddat to the custody of children up to the age limit prescribed by Shariah on the husband's expenses, of course subject to their welfare and best interest.

20. When the dissolution of marriage is sought by the wife who is otherwise not found entitled to rescind the contract of marriage without any consideration on any of the grounds mentioned in Muslim Marriages Dissolution Act, 1939, she can offer any consideration to the husband for her release from the marriage tie. If the husband agrees, it will operate as Khula i.e. dissolution of marriage by agreement (Mubbarat). If the husband does not agree, she can approach to Qazi, which is Court of competent jurisdiction in the modern era, who is bound to order dissolution, as it is right of the wife to obtain Khula if she feels constrained to seek it, however, the Qazi/Court is bound to award compensation to husband to be payable by the wife. It is normally the amount equal to the dower and other gifts received by the wife. However, Court can award even more than the dower and other gifts as discussed in the renowned books of Fiqah i.e. Hidaya, Dur‑e‑Mukhtar etc. and it also finds favour from the case of Bilqis Fatima PLD 1959 (W.P.) Lah. 566.

21. Compensations in the case of breach of marriage contract or for the injuries to feelings, affections, wounded pride, reputation as well as for the loss of marriage.

22. As said somewhere above, whenever, such a case was brought to the notice of Holy Prophet (p.b.u.h.), he immediately passed order of dissolution of marriage on the bare statement of the wife without requiring her the lead the proof in support of her contentions. Aversion, disliking or hatred relates to mental perception of a person not susceptible to any measurement or proof, hence can never be subjected to any proof. What at the most can be measured is its level. If it is low and soluble one should persuade and motivate the couple to reconcile, but if it is high on fuel, best course is to depart them in the manner the Holy Prophet (p.b.u.h.) did. The authorities of law referred by the learned counsel for respondent i.e. PLD 1985 SC (AJ&K) 60 and PLD 1986 Quetta 185 are not applicable in the case in hand in view of the facts of this case where the appellant has throughout maintained that it is impossible for her to live with the husband. I agree with the authorities of law referred by the learned Advocate for respondent that Khula cannot be allowed on mere asking of the wife or on her choice, but it cannot be refused when conduct of the parties does not leave a room for their co existence as wife and husband. It is better to err on the right side if at all it is an error.

23. The appellant under the circumstances is the best judge of her sentiments and conscience. She alone can perceive and measure the quantum of love or hatred towards her husband. Besides having social and family life, the spouses have a private, personal, mental and spiritual life as well not exposed even to their children or parents. Spouses are termed as garments for each other in Verse No. 187 of Sura al‑Baqrah. None of the two can be said to be living within the limits of God if their garments are torn. They have 'a mental and spiritual approach as well towards each other, which is most intimate communication. This communication creates a physical link between them. The innate love and hatred for each other is their subjective approach. One can advice, persuade, try to reconcile and even admonish them to behave and accept each other in the larger interest of family and children, but cannot compel and force them to accept each other. Woman is a human being, possessing all the human rights and duties, which in no way conflict with the rights and duties ordained by Almighty, except those specifically ordained by Holy Qur'an or His Prophet (p.b.u.h.). If a husband can with or without any reason divorce the wife and bring fifteen years long wedlock to an end, why should the wife be denied the relief which Almighty has given to her and which of course is regulated in a most honorable and sacred manner by Qur'an.

24. The contention of the learned counsel for the respondent that animosity is created by appellant and she cannot be given benefit of her errant conduct and that if she is allowed divorce after six children it will encourage be wilderness and uproot the foundation of the family system, may be true sentimentally and may also have found favour in medieval traditional society, but it cannot be accepted in 21st Century where the concept of justice is right oriented arid not merely duty oriented. The modern concept of justice gives centiality to‑freedom and liberty and it is in fact true depiction of what Qur'an visualized in Verse 229 of Sura Al‑Baqara and Prophet (p.b.u.h.) followed in such‑like cases, discussed above.

25. States that Governments are under obligations not only under Qur'an and Sunnah but also under international conventions as well to ensure dignity and rights of women during marriage and at its dissolution. In the case reported as Humaira Mehmood v. The State PLD 1999 Lah. 494 two conventions are reproduced as follows:

"Pakistan is a member of United Nations and is signatory to the "Convention on the Elimination of all Forms of Discrimination Against Women" which in its Article 16 enjoins all the member states as under: "

1. Sates Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on the basis of equality of men and women:‑‑‑ (a) the same right to enter into marriage; (b) the same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) the same rights and responsibilities during marriage and at its dissolution. At a Conference attended by the representatives of all the Islamic countries including Pakistan a Resolution was adopted which is known as Cairo Declaration on Human Rights in Islam dated 5th August, 1990 (Encyclopedia of Human Rights by Edward Lawson, 2nd Edition at page 176) stipulates as under:‑‑‑ "Article 5. (a) The family is the foundation of society and marriage is the basis of its formation. Men and women have the right to marriage, and no restrictions stemming from race, colour or nationality shall prevent them from enjoying this right. (b) Society and the State shall remove all obstacles to marriage and shall facilitate marital procedure. They shall ensure family protection and welfare". Article 6 (a) Women is equal to man in human dignity and has rights to enjoy as well as duties to perform; she has her own civil entity and financial independence and the right to retain her name and lineage".

26. While interpreting the municipal law, we have to take into consideration the international conventions as well, to which we are signatories. We will be going beyond; rather against these conventions, if the marital procedures are kept stiffened to the disadvantage of women thereby denying the dignity which Shariah and international conventions give them.

27. As stated above, evidence on record does not entitle her to dissolution of marriage on the ground of cruelty. But her categoric and constant stand that she cannot live with the husband against whom she has developed intense hatred and disliking and in view of the war of litigation between them; I do not think any room is left for their peaceful marital life. In the case reported as Mst. Naqeeba Begum v. Abdul Khaliq 2002 SCR 218, it is held that "this is well‑settled principle of Shariah that a decree on the basis of "Khula"' can be passed if the Court comes to the conclusion that it was no more possible for the spouses to live together within the limits ordained by the God. Obviously, the question as to whether the spouses can live within the limits ordained by God or not is a question of fact, which depends on the circumstances of each case. It is not necessary that the marriage can only be dissolved on the basis of "Khula" if there exists a deep rooted hatred between the husband and wife, rather the same can be dissolved on the basis of variety of circumstances which satisfy the Court that it is not possible for the spouses to live as husband and wife as it ordained by the God".

28. In view of the above accepting the appeal, judgment and decree of the Family Court dated 21‑4‑2003 is set aside. Decree of dissolution of marriage is passed in favour of appellant on "Khula". As the respondent has stated that amount of dower is paid in the form of ornaments, there is no reason not to accept it as husband usually gives the ornaments at the time of marriage. Hence appellant shall deposit an amount of Rs.5,525 in this Court within, fifteen days. H.B.T./61/Sh.C.(AJ&K) Appeal accepted.