P L D 1952 Lahore 113 (PLP)

CORNELIUS, A. C. J.‑This reference to a Full Bench involves the question whether incompatibility of temperaments between the supouses constitutes a valid ground for dissolution of a marriage under Muslim Law, and has been made by Kayani J. in the case Mst. Saeeda Khanam Muhammad Sami R. S. A. 62 of 1950. The facts of the case, so far as they are necessary for the purposes of this judgment, are that the wife as plaintiff had sued for dissolution of her marriage with the defendant her husband on the grounds of failure to maintain her for a period exceeding two years failure to discharge marital obligations without reasonable cause for a period exceeding three years, cruelty, false accusation of immorality, depriving her of her dower, obstructing her in the, saying of her prayers, and, as to the clash of temperaments, that the defendant was of irritable nature and changing demeanour and given to imposing his will by force, and further that as a result of the difference in the temperaments of the spouses, the plaintiff had begun to hate the defendant. The trial Court found‑that the plaintiff's case in respect of failure to maintain and failure to discharge marital obligations over the statutory periods had not been proved, and similarly, the charges of taking away of the plaintiff's dowery and of obstructing her in saying her prayers were unproved. As regards the question of conflict of tem peraments, he thought much could have been said for the plaintiffs case but she was put out of Court as a result of the decision of a Division Bench of this Court in the case "Umar Bibi v. Muhammad Din " (A. I. R. 1945 Lah. 51), where it was held that a divorce cannot be granted with ref erence to a Muslim marriage, on the grounds of incompatibility of temperaments, dislike or hatred. The learned Subordinate Judge, however, found that there had been cruelty as well as the levelling of a false charge of immorality, and on these grounds, he granted the plaintiff a divorce. An imputation of adultery, known as lian, constitutes a ground for divorce under Muslim Law. Cruelty is a valid ground for divorce under the statute law, viz., the Dissolution of Muslim Mar riages Act, 1939, section 2 clause (viii). The findings in respect of cruelty were as follows. The plaintiff had under gone many privations and sufferings. Owing to a mishap to a member of the husband's family shortly after she entered it by marriage, she was described as manhoos. Her visits to her own relations were disapproved, and she was beaten whenever she stayed with her relations too long. Visits by her relations to her were also disapproved, and these led to the husband suspecting her of immorality. He carried this suspicion so far that he would not let her go to the kitchen, in case she might meet the cook there. When she protested against his accusations of immorality, he beat her. He did not care for her to look well, and therefore, refused to allow her to wash and dress her hair. Once in the presence of one of her friends, he beat her with a broom. On appeal to the District judge, the decree awarded to the plaintiff was reversed. The learned District judge on a revalua tion of the oral evidence led in the case, including that for that of the plaintiff herself, came to the conclusion that no cruelty had been proved, and that the evidence for the plaintiff was rebutted by statements of the defendant's witnesses. As regards the disagreements between the spouses, the learned District Judge remarked concerning the plaintiff that "the change in her circumstances seems to have turned her head and led her to believe that she is more than a match for her husband. She had declared concerning herself and her husband as follows :‑ "Our temperaments are so conflicting that it is impossible for us to pull together"; With reference to this and to another statement by the plain tiff that she was a self‑respecting woman, the learned District Judge remarked that this was, in his opinion, "a mis-description of the temperament of a self‑willed and self-opinionated woman". He thought that she was anxious to get rid of her 'husband because she disliked him for various reasons and did not think he was up to her mark, but opined that so long as the husband chose to retain her and so long as he did not give her an excuse for seeking the, cancellation of her marriage, the union must continue. With reference to the question of incompatibility of temperaments, the learned District judge also referred to the Division Bench case of 1945, which has already been cited. The plaintiff then instituted a second appeal in this Court and in arguments before the learned Single Judge hearing the appeal, the question was raised that "since even the District Judge has recognized that the temperaments of the plaintiff and the defendant were incompatible, this was enough to secure for the plaintiff a dissolution of her marriage. "Accepting this position, namely, that the District judge had agreed that there was incompatibility of temperaments as between the parties, the learned Single judge proceeded to refer to the Division Bench case of 1945 mentioned above and to a com mentary on the Sahib‑ul‑Bokhari known as Umdatul Qari, and expressed the opinion that if Muslim law recognises "shiqaq', as an adequate ground for divorce, it falls within clause (ix) of section 2 of the Dissolution of Muslim Marriages Act, 1939. This clause lays down that a woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any (other) ground which is recognised as valid for the dissolution of marriages under Muslim Law. In view of the Division Bench decision to the contrary effect, he directed that the case should be placed before the Chief justice for reference to a larger Bench. It is necessary first to consider the meaning to be given to the phrase, "incompatibility of temperaments". The ex pression is not a term of art, and learned counsel for the parties in the course of an exhaustive argument have been unable to furnish us with any authoritative judicial interpretation of the expression. In the ordinary dictionary meaning, "incompatibi lity" may be rendered as "incapacity for harmonious combina tion or association", "incapacity for appearing or being thought of together or of entering into a system of theory or practice". "Temperament" may be defined as "constitution or frame of mind", "disposition" "character of mind or mental reactions which are characteristic of an individual". With' reference to the parties to a marriage, the expression "incompatibility of temperament" must be understood in relation to the various forces acting on the couple which compel or induce them in the direction of harmonious and happy association. There are in favour of such a result, a considerable number of powerful factors. Besides the fact that the pair belong to opposite sexes and may be assumed to possess a normal desire for making a happy union of their lives, there are the various pressures which are exercised by their respective families and by society, and in addition, through the procreation of children, the forces which guide them in the direction of mutual adapta tion are greatly reinforced by the affection which accompanies the raising of a family. Where, therefore, it is found that there is such a lack of agreement between the couple as to fall within the full meaning of the expression "incompatibility of temperament", this must be traced to a total lack of sym pathy between them, such as induces a resistance to mutual adaptation, despites the various influences, guiding the couple in that direction. There should and must be basically hatred or aversion on the part of one or both of the parties to the marriage to produce such a result. In view also of the fact that a married couple live in close association with each other, this utter lack of sympathy or aversion or hatred cannot fail to express itself in the behavi our of the couple towards each other. Indeed, the best evidence to establish incompatibility of temperament must necessarily be that afforded by instances of such behaviour. It is of course entirely insufficient, to establish incompatibility of temperament in a particular case, for one, of the spouses to declare, as was done by the plaintiff in the present that their temperaments are completely conflicting and they cannot pull together. That however, is not the only evidence on the subject in this case. There are a number of acts of alleged cruelty adduced by the plaintiff, in regard to which she has led evidence, and for the purpose of determining whether there is indeed incompatibility of temperament, it is open to us to take these various acts into account. They have already been mentioned above, and having regarded them both individually and collectively with care, I fail to see in them proof of such a degree of difference of dispositions or of reactions to particular incidents and influences, or even of lack of sympathy as would qualify for the description incompatibility of temperament. The instances are more readily traceable to bad manners, tendency to suspect the plaintiff's character, tendency to give expression to such suspicion, and tendency to use violence towards the wife, on the part of the husband. For the display of bad manners, the plaintiff was not at all responsible; she did not time her arrival in the family herself and, therefore, it cannot be said that her husband's description of manhoos applied to heir was his reaction to anything said or done by her. As regards the imputations of immorality, they arise out of visits by the plaintiff to her kitchen and to her relations, and here again, there is no question of reaction on the part of the husband to anything in the nature of a charac teristic act by the plaintiff, and, therefore, it is impossible to infer any clash, of disposition here, at the most, a defect of mentality in the husband may be deduced. To the same category belongs his refusal to allow her to dress and look well. There remain the allegations of beating, and this is also of unilateral effect indicating a fault in the nature of the husband. Therefore, I would be inclined to say that in the present case, the evidence is hardly adequate to draw a conclusion of incom patibility of temperament between the spouses. For that, it would be necessary, by means of inferences drawn from instances of behaviour as between the spouses, to gain an impression concerning the mental characteristics and the general disposition and frame of mind of each of the spouses, and thereafter to draw the conclusion that, having the minds that they possessed, it was impossible for them to adapt them selves to each other, and, therefore, they were incapable of living together in harmonious association. As I have remarked, the evidence on the record is insufficient for making such a survey and examination of the mentalities of the spouses in this case. This finding does not, however, conclude the matter, for the learned Single Judge, in the referring order has included also the matter of aversion and hatred as between the spouses, as constituting a breach upon which a claim for dissolution could be grounded. In the referring order, the learned Single judge has placed considerable emphasis upon' the Arabic word "shiqaq," meaning a breach or separation into two from a condition of unity, as used in Verse 35 of Chapter IV of the Holy Quran. Towards the close of the order, he has used words which convey the impression that in his opinion, shiqaq by itself is an adequate ground for divorce in Muslim Law. Elaborate arguments have been addressed to us on this point, and, speaking with great respect to the view of the learned Single judge, it seems that the texts of revealed scripture do not support his view. Before proceeding to consider these texts, I may deal at this stage with a certain tradition reported by Bokhari, on which the learned counsel for the appellant relied strongly as an instance of divorce being decreed by the Holy Prophet in a case in which there was rip more than aversion towards the husband on the part of the wife as a cause of action for seeking the separation: I reproduce the tradition from Al‑Haj Maulana Fazlul Karim's translation of the Mishkat‑ul‑Masabih, a classified collection of traditions. The tradition appears at page 703 of Book II of this translation, which is entitled "Al‑Hadis", is in the following words :‑ "Ibn Abbas reported that the wife of Sabet bin Qais came to the Holy Prophet and said : O' Messenger of Allah! (As for) Sabet bin Qais, I do not blame him about (his). Character and piety but I dislike infidelity over Islam. The Apostle of Allah asked : Can you not return his garden? Yes, said she. The Prophet said : Accept the garden and give her a single It seems evident that this is a very condensed account of this authentic instance in which the Holy Prophet himself decreed a divorce between the parties to a marriage. A some what fuller account is given in the Commentary of Imam Razi on the Holy Quran, .entitled "Tafsir‑ul‑Kabir", Vol. II, and runs as follows :‑ "It has been reported that this verse (i.e. Verse 35 of Chapter IV) was revealed respecting the case of Jamila daughter of Abdullah son of Ubayy and her husband Sabet son of Qais son of Shemas. The facts were that she hated him with intense hatred and he loved her with intense love. She came to the Holy Prophet and said : Effect separation between me and him as I hate him. I saw him, from the side of my veil, coming amongst people. He was of the shortest statute, the ugliest in face and blackest in complexion. I do not prefer infidelity (Kufr) after having accepted Islam. Sabet addressed the prophet as follows O' "Prophet of Allah, order her that she should return the garden I gave her". The Holy Prophet said to her : "What have you to say"? She replied : "I agree and I will give more". Then the Holy ' Prophet said: "No, only the garden". Then the Holy Prophet said to Sabet : "Take from her what you gave and clear her way. Sebat did this and it was the first khula in Islam. Strenuous efforts were made to employ this as an instance u. divorce by judicial decree, where the woman sought separator and had nothing to found the prayer upon beyond aversion for her husband. Accepting the facts, as stated by Imam Razi elaboration of the authentic tradition, it becomes clear beyond doubt that the case is indeed one of khula, and not of divorce by, a judicial decree. No more is needed beyond the opinion of the learned divine Imam Razi for reaching this conclusion, and it need only be added that nothing can be made of the fact that the Holy Prophet himself made a direction to the husband as to how he was to act in the circumstances; I would regard that as an act of creation and establishment of the institution of khula in Islam, for the guidance of all husbands similarly situated, rather than as a decree awarded by the Holy Prophet acting either in the capacity of a judge or as Head of the State of Islam. For it is evident that as the case came before the Holy Prophet; on one side the wife expressed a desire for separation from her husband, not on any ground affecting his character or. his devotion to religion, but because his physical appearance excited aversion in her mind. Immediately after the wife had spoken her mind, the husband put forward a claim for return of the garden which he had given her; it should be noticed that he did not protest against his wife's behaviour, and, indeed, by asking for a consideration, he must be deemed to have expressed willingness that the marriage bond should be broken in return for an advantage to be received by him. It only remained for the Holy Prophet to discover whether there was agreement on the part of the wife to the proposition offered by the husband, and the tradition makes it clear that the Holy Prophet did so and finding that there was a consensus between the parties, he gave a direction which stands as guidance for all other Muslim married couples for all time. If any authority be needed to exclude the possibility that the Holy Prophet was allowing a divorce to a woman plaintiff on the mere ground of her aversion for her husband, coupled with willingness to restore her dower to him, it may be found in the recorded traditions of Ahmad, Tirmizi and Abu Daud, reproduced at page 702 of Book II of the compilation of Al‑Hadis, referred to above. These traditions are as under :‑ 1. "Saoban reported that the Messenger of Allah said: Whichever woman asks her husband for divorce without fault, the fragrance of paradise is unlawful for her.

2. Ibn Omar reported that the Apostle of Allah said : The most detestable of lawful things near Allah is divorce". It will be noticed that in the authentic version of the tradition respecting Sabet‑b‑Qais and his wife, there is no reference to the physical appearance of the husband, and the wife is said to have declared clearly that she did not blame him for his charac ter or his religious devotion, but she disliked infidelity after accepting Islam. If, then, it be contended that on the basis of the wife's aversion alone, the Holy Prophet decreed a divorce, on condition of return of dowry, there would be a patent inconsistency with the solemnly declared opinion of the Holy Prophet that a woman seeking divorce from her husband without fault will not enter Paradise. But, as has been seen already, this is not the most logical or natural interpretation to be placed upon the recorded tradition concerning Sabet‑b‑Qais, but, on the other hand, it should be regarded, as declared by the learned divine Imam Razi, as an act of establishment by the Holy Prophet of the institution of khula, in Islam. It is unnecessary to elaborate the differences between divorce by khula, and divorce as sought by the plaintiff in the present case. In khula, the marriage is dissolved by an agreement between the parties for a consideration paid or to be paid by the wife to the husband, it being also a necessary condition that the desire for separation should come from the wife. Where the desire for separation is mutual, there too dissolution by mutual` agreement for a consideration to be paid by the wife to the husband is lawful, but it is described in that case as mubarrat. It has been held by the Courts in India that for the purpose of dissolving a marriage under either of these modes, it is sufficient that the husband should propose to pronounce talaq or otherwise to dissolve the marriage for a consideration and that the wife should accept the proposal; it is not necessary then that the word "talaq" should be pronounced but the contract, itself operates to dissolve the marriage. (Muhammadan Law by Tyabji, Third Edition, sections 162 and‑163). I may refer also in this context to an observation in the learned work of Syed Ameer Ali on Muhammadan Law, Fifth Edition, Volume II, at page 507 in the Chapter entitled "khula and mubarrat". The passage reads as follows :‑ "When the wife, owing to her aversion to the husband, or her unwillingness to fulfil the conjugal duties, is desirous of obtaining a divorce, she may obtain a release from the marital contract by giving up either her settled dower, or some other property; such a divorce is consequently called An order to differentiate between the separation in this form, and separation by decree of a Court 'on one of the numerous grounds available under Muslim Law, I cannot do better than refer to another passage from the same learned treatise which occurs at the commencement of section 1 of Chapter XV, at page 519 :‑ "According to the Sunni and Shiah Schools, when the married parties have no tangible cause of complaint against each other, but a mutual aversion due to incompatibility of temper, want of" sympathy, etc, they can dissolve the marriage‑tie by mutual agreement. When the husband is guilty of conduct which makes the matrimonial life intoler able to the wife, when he neglects to perform the duties which the law imposes on him as obligations resulting 'from marriage, or when he fails to fulfil the engagements volun tarily entered into at the time of the matrimonial contract, she has the right of preferring a complaint before the Kazi or judge and demanding a divorce from the Court". The words employed by the learned author are admirably precise and clear. It would appear, therefore, that unless the wife can adduce one or more instances of such behaviour, as will entitle her to present a prayer for dissolution thereon to the Kazi, if she finds the marriage tie intolerable for no more specific reason than that there is incompatibility of temperam ents between the parties or that she has aversion for the husband, she must by' the offer of consideration induce the husband to release her. Once the husband has agreed, the release takes effect, and it would seem that the husband would have a right of suit to recover the consideration in return for which he consented to the arrangement, should there be failure of payment on the part of the wife. The divorce, however, would take effect as soon as there was an agreement. I propose now to consider in some detail and I hope with the proper respect, the words of revealed Scripture as contained in Chapter, IV of the Holy Quran with respect to the subject of shiqaq as between the spouses. In this connection, I propose not to attempt an interpretation of Verse 31 by itself but to take it in its context, along with other verses relevant to the same subject. In doing so, I believe myself to be following a practice which is sanctioned by learned Muslim divines. Thus, I observe that in his learned work entitled, "The Religion of Islam", the late Maulana Muhammad Ali, M.A., L.L.B., when quoting Verse 35 from Chapter IV at page 673 reproduces immediately after Verse 130 from the same Chapter. I propose to reproduce below four Verses from this Chapter, namely, Nos. 34, 35, 128 and 130, and will employ for the purpose the translation of Maulana Muhammad Ali: "

34. Men are the maintainers of women, because Allah has made some of them to excel others and because they spend out of their property; the good women are therefore obedient, guarding the unseen as Allah has guarded ; and (as to) those on whose part you fear desertion, admonish them, and leave them alone in the sleeping places and beat them ; then if they obey you do not seek a way against them ; surely Allah is High, Great. "

35. And if you fear a breach between the two, then appoint a judge from his people and a judge from her people ; if they both desire agreement, Allah will effect harmony between them : surely Allah is Knowing, Aware. "

128. And if a woman fears ill usage or desertion on the part of her husband, there is no blame on them, if they effect a reconciliation between them, and reconciliation is better ; and avarice has been made to be present in the (peoples.) minds ; and if you do good (to others) and guard (against evil), then surely Allah is aware of what you do. "

130. And if they separate, Allah will render them both free from want out of His ampleness, and Allah is Ample- giving, Wise". It is necessary, at the outset, to make some observations, themselves based on the footnotes contained in the same Volume, regarding the precise meanings to be attached to two expressions occurring in these Verses. Firstly, as to the word "nushuz" which occurs both in Verse 35 and in Verse 128 I would refer to footnote No. 632 at page 236 of the 1920 Edition of Maulvi Muhammad Ali's translation of the Holy Quran. This occurs under Verse 128 and I reproduce it below in full :‑ "There are two words, nushuz and i'rad,‑ used here. The former literally means rising. You say as meaning the wife was or became disobedient to her husband, and exalted herself against him, and resisted him and hated him and deserted him. And you say meaning her husband treated her unjustly and was unkind to her, or estranged himself from her, or disliked or hated her. I'rad is literally turning away, avoiding, shunning or leaving a thing. Hence I render the first word as ill‑usage and the Second as desertion, as. order is generally indicative of the comparative strength of the significance in the absence of other considerations". The second word requiring careful interpretation is the word "hakama" appearing in Verse 35, where it is said that in case of shiqaq, you (that is to say, the State or its representative) should appoint hakama, one from his tribe and the other from her tribe. The expression "hakama" is the plural of the word "hakam" which has been rendered as "judge" by. Maulana Muhammad Ali. In other translations, it has been rendered as arbiter". It seems to me, and here I speak with the greatest possible respect, that it is largely the result of employment of these two senses, viz,. "Judge and "arbiter" in the comment aries upon and the translations of this particular Verse, which have introduced in a great number of minds the feeling that judicial functions were conferred by this verse upon the two persons whom the representative of the State was required to appoint for the purpose of enquiring into the relationship between the spouses. Learned counsel appearing before the Bench have been good enough to procure dictionaries of the Arabic language, in which the radical and generic senses of all, Arabic words have been expressed in English with great parti cularity. I may refer to one of these, viz., Lane's Dictionary, Volume 1, page

616. The word "hakam", of which the plural is "hakama, is stated to have the following as its primary meanings :‑ "he prevented, restrained or withheld him from acting in an evil and corrupt manner, as also, from doing that which he desired". Several derivatives are also defined, and among these, mention may be made of the following :‑ (1) "Al‑Hakam" means the judge, a name of God, a person of most advanced age. (2) "Hakam" means one who judges, decides judicially, etc., arbiter, umpire, one who exercises rule. Giving then the radical meaning to the word "hakam" and bearing in mind the possibility, may the probability, that there could never be an intention of confusing jurisdictions, or pro viding more than one authority to be seized of a particular matter (in this case the question whether the spouses were to be separated) at the same time, I am of the opinion that the meaning of the word "hakama", which should be accepted for the purposes of placing a correct interpretation upon Verse 35, is that which is in contra‑distinction with the judicial function. Having regard again to the organisation of society, among the peoples to whom this Scripture was revealed, viz., on a tribal and family basis, it becomes reasonably possible that by hakama is meant persons from the tribes of the respective spouses who exercise authority over the members of their tribes in such a way that they are capable of restraining such persons from acting in any particular way, or from acting wrongly, and such persons could only be those who were acknowledged heads of the tribes, i.e., the legitimate chiefs or otherwise the elders of the tribes. The phenomenon is observable to this day in many parts of the Western Punjab where tribal chiefs and elders still exercise almost undisputed sway over their people, and in fact exercise a benevolent and paternal rule, of which the benefits are numerous and whose passing is regarded by all enlightened persons with regret. If this differential sense be applied to the word "hakama", as employed in Verse 35, it becomes possible to perceive the nature of the direction with clarity and without any possibility of causing confusion of jurisdictions: With these preliminary remarks, I proceed to state what in my humble view is the intention of the verses which have been reproduced above. Verse 34 commences with a state ment of the reasons for the superiority of men over women, and proceeds to‑enjoin obedience and right conduct upon good women. Then, it is prescribed, with reference to women who become rebellious to their husbands authority, that the husbands should admonish them, and withdraw their company from them in the sense of refusing to cohabit with them and should beat them. The nature of 'the treatment enjoined indicates that the husband is not responsible in any way, for the wife's behaviour, by any conduct on his part. If by these methods, obedience on the part of the wife is restored, then no further action is to be taken against her. But if a shiqaq (breach) be feared, then an elder holding authority is to be appointed from the tribe of each of the spouses. Does the word "shiqaq" refer to any kind of breach? Obviously it cannot mean any slight or temporary difference, but must be confined to serious rifts calling for the intervention of tribal elders for the preservation of coherent society. Can it mean a breach from any cause, or is there emphasis upon the cause stated in the preceding verse (i.e. 34)? I incline strongly to the latter view, namely that the breach must be due to refusal by the wife to render obedience to her husband. For in such conduct, there is a breach of the bond of obedience by which the wife is bound to her husband, and on her part, there is also a breach of an underlying though unexpressed term of the contract of marriage, namely that she shall be obedient to her husband. What the elders are to do, how they are to proceed, what powers they have of a procedural nature, and whether or not, they have power to impose their decision upon the couple, is not stated, but the verse declares that if the spouses desire agreement, then Allah will effect harmony between them. In logical order, after Verse 35 should be read Verse 128; which deals with the converse problem, namely, that of a woman who is faced with unjust treatment or aversion on the part of her husband. In this case, there is no mention of reference to elders or otherwise, but te verse proceeds to say that re conciliation is the best course, and no blame will attach to the couple if they effect reconciliation ; then follow certain rules of general guidance, which are intended, in the context, perhaps to minimise the danger that reconciliation may be frustrated by the parties being guided purely by their self- interest, such as that avarice is found in the minds of human beings, and that the people should do good to others and guard against evil. Noticeably, there is no reference here to shiqaq or breach between the spouses. Next in order should be read Verse 130, which lays down clearly that if the spouses separate, Allah will render them both free from want out of His ample ness. When this verse is read in conjunction with the repeated injunctions in Verse's 35 and 128, that reconciliation and agreement is the better course, its effect may be appropriately understood to be that, having made every effort at restoring normal relations between themselves, then, if still the spouses cannot agree and they separate, their action will not merit dis approval. As to how they are to separate, nothing is said in the verse, but there is no doubt of the various processes pro vided by the law of Islam in this respect, and these divide into three classes, namely, separation by divorce pronounced by the husband, separation by mutual agreement, and separation by judicial decree. As has been seen, the opinion of the learned writer Syed Amir Ali is that where there is nothing except incompatibility of temperament, aversion, hatred and dislike, the marriage can only be dissolved by the method of mutual agreement ; it could of course also be dissolved by the husband acting unilaterally, but we are dealing with a case in which the husband is not willing to grant a divorce. The argument for separation by judicial decree is based upon the reading of Verse 35 in Chapter IV, which, in my humble opinion, gives a wholly specialised character to the persons appointed by the Qazi, in accordance with the command contained in the verse, a character which the expression employed, namely, "hakama", does not necessarily convey. The matter has attracted the notice of learned commentators of the Holy Quran, and learned counsel for the parties have referred us to several of the commentaries on the subject. I propose to cite some of these commentaries below, but it is desirable that at this stage, I should emphasise that, whatever be the conclusion as to the power which Verse 35 in Chapter IV of the Holy Quran be held to confer upon the chiefs or elders who are appointed to enquire into the breach, there seems to be neither argument nor authority available for supposing that this power is to be exercised by the Qazi, in whose place the secular Courts of Pakistan may be deemed to sit, particularly in a case where no such "mediators" have been appointed. It is necessary to mention this, for the reason that, in the argument addressed to us on the part of the appellant, it seemed to be ‑assumed to be sufficient for inducing the secular Court to grant a decree in the present case to show that on a true interpretation of Verse 35 in Chapter IV of the Holy Quran, the "mediators" have this power. It is obvious that this proposition is in capable of acceptance. The commentaries, from which I propose to quote, have already been considered and cited at some length in the learned judgment of Mr. Justice Abdur Rahman in the case Umar Bibi v. Muhammad Din, cited above. I will, therefore, content my self with reproducing somewhat more fully a translation of Imam Razi's commentary at pages 223‑224 of his book entitled "Tafsir‑ul‑Kabir"; this translation has been prepared at the request of the Bench by Mr. Muhammad Shafi, learned counsel for the appellant. It is reproduced below :‑ "Q.

7. Is it permissible for the hakama to issue an order binding on the spouses without‑ their sanction or permission, for instance, to effect divorce or to direct the woman to free herself by paying something from her property? A. With respect to this question, according to Shafei there are two schools of thought. One is that the order of the hakama will be binding, and this view is held by Imam Malik and Imam Ishaq. The other school of thought is that it is not permissibe for the "arbiters" so to act, and this is the view of Abu Hanifa, who considers that this is a matter of delegation like other delegations. Imam Shafei has reported a tradition from Hazrat Ali and that has been reported by Ibn Sirin from Ubaida. It is to the effect that a man and a woman came to Hazrat Ali and each one of them was accompanied by a number of persons. Hazrat Ali ordered that one hakam should be appointed from the man s family and one from the family of the wife, and addressing the hakama, he said : 'Do you know what your duties are?. Your duty is to unite the couple if they can be united, and if you decide to separate, separate them. The woman said she accepted what Allah had ordained whether the verdict be for or against her. But the husband said that he did not want separation. Hazrat Ali then said to the hus band: `You have uttered a lie. You should also have given the same undertaking as your wife'. Imam Shafei has observed that in this tradition there is argument for both views. In support of one view is the de claration of Hazrat Ali that if they deemed it proper to unite the couple, they should do so, or they could separate them, and this is held as authority for saying that the verdict of the "arbiters" prevails without the consent of the spouses. In support of the second opinion, it is urged that when the husband did not agree, Hazrat Ali hesitated, and when Hazrat Ali addressed the husband and said that he was wrong, his meaning was that the husband was not right in not doing the same thing as the wife had done. In support of the first opinion, it is pointed out that Allah has called them, namely, the arbiters, hakamain, and hakam is the judge, and when Allah made him hakam. He clothed him with the authority of hukam. In support of the second opinion, it is said that when Allah called them hakamain. He did not give them any authority other than reconciliation and this demands that except reconciliation nothing is delegated to them". The essence of the problem and the arguments which may be adduced in favour of each of the two conflicting views are set out in this passage with commendable perspicacity and fairness. I propose to refer briefly to the opinion expressed in the Umdatul Qari and Fath‑ul‑Bari which are reproduced at pages 55 and 56 respectively of the judgment cited above. In the Umdatul Qari, it is stated that there is a difference of opinion as to the procedure to be adopted where the hakama agree on separating the parties. Imam Malik, Imam Auzai and Imam Ishaq are of the opinion that, the view of the hakama will be enforced independently of any authority and without the permission of the spouses. But the Kufies and Imam Shafei and Imam Ahmad Ibn‑i‑Hanbal are of the opinion that the hakama cannot act without the permission of the husband in whom the right to divorce vests if the husband refuses, then only the judge can effect a divorce. The Fath‑ul‑Bari on the same subject declares that if the hakama agree their order will be enforced without delegation. or reference, but if they agree that the spouses should be separated, there are two opinions as to the action which is to follow. Imam Malik, Imam Ahazaj and Imam Ishaq are of the view that the order can be enforced without delegation and without the permission of the spouses. but the Kufies, Imam Shafei and Imam Ahmad Ibn‑i‑Hambal are of the view that the hakama's powers are dependent upon receiving such permission. It is common ground that the opinions of the four great Imams, Malik, Shafei, Abu Hanifa and Ahmad Ibn‑i‑Hanbal are entitled to a decree of respect beyond that due to any others. The consensus of opinion among them is clearly to the effect that the hakama may only act for the purpose of dissolving the marriage, provided the power is delegated to them by the husband. It is settled under Muslim Law that the husband may, either in the contract of marriage or by agreement after marriage, delegate to his wife or to any other person his power to divorce the wife. (Tyabji's Muhammadan Law, Third Edition, page 213). This being the case, there can be no doubt whatsoever that, if the husband delegates his power of divorce to the hakama, they may exercise it on a general review of the temperaments and characters of the spouses, without reference to any conduct on the part of the husband, or any other cause of action such as would have grounded a prayer by the wife before a Qazi for dissolution of her marriage. They are well equipped to make a thorough enquiry into the relation between the couple and the state of their minds at the time when enquiry is held ; they are also, by virtue of their positions as elders of their respective tribes, in a position to estimate with a high degree of certainty whether reconciliation is at all possible. If, having done their best, to bring about reconciliation (and this would appear to be the clear intention of Verse 35 in Chapter IV of the Holy Quran), they form the opinion that reconciliation is impossible and separation is desirable, they may grant a, divorce on behalf of the' husband under the authority delegated to them. But this would be wholly different from a judicial decree of separation, which can only be given upon satisfactory proof regarding the occurrence of one or more of a specified number of acts by the husband, which are prescribed by the law of Islam as sufficient causes of action for such relief. The existence of doubt among the principal Imams on this point is clear, and it is also clear that three of the four favour the view that the hakama cannot grant a divorce unless they be authorised to do so by the husband; where the husband does not agree, the matter is one for the jurisdiction of the judge. It is no doubt this circumstance which weighed with Mr. Justice Abdur Rahman in reaching the decision in the case Umar Bibi v. Muhammad Din, and, speaking with great respect both to his learning as well as to the views of the learned commentators, I also am of the same opinion, namely, that the view of Imam Abu Hanifa, Imam Shafei and Imam hmad Ibn‑i‑Hanbal is the correct one. Besides being eminently logical, it also has the merits that it avoids all con fusions of powers and jurisdictions. The same conclusion can also, in my opinion, be drawn from the consideration that in the favour verses from the Holy Quran which have been cited above, the provisions for media tion is only made in the case 'where the wife, without cause furnished by her husband, becomes intolerant of his' authority and refuses to perform her marital obligations. There is no such provisions in the case where the wife fears unjust treat ment, or hatred, avoidance or shunning amounting to desertion, on the part of her husband. The omission cannot be without significance. Where the wife is an injured party, there is first an injunction that an attempt at reconciliation should be made by the parties, having cleared their hearts of selfishness, and acting solely with a desire to do good and to avoid evil. There is then a reference to the permissibility of separation where reconciliation is not possible. How is separation to be effected in such a case surely, either by 'khula or by reference of the injury, as a justiceable issue, to the proper authority, for the wife cannot (except in the rare case of special delegation) divorce herself, and she has no power to compel the husband to divorce her. There must be some fault on the husbands part to justify recourse to the Qazi, for the seeking by a woman, of divorce from her husband without fault is severely deprecated. On the other hand, where the wife's determined disobe dience and non‑performance of her marital obligations is the cause of estrangement, there being no fault in the husband, he can very well deal with the case under his unilateral power of divorce, but it is enjoined that there should first be a reference to tribal elders. This would ensure not only the sanctity and preservation of marriages against the danger that divorce may be given too lightly, but also that marriages are no reduced to contracts of unwilling slavery for the wife. The need of reference to the judicial authority of the State does not arise, for there is available the powerful influence bf the tribal elders to ensure that everything is done by the parties, which is necessary to bring about a proper and complete resolution of the difficulty. Delegation of the husband's power of divorcing his wife to the elders can likewise be ensured, if it should prove necessary. In either case, there must be more than mere irreconcilability of disposition, or mere hatred or dislike between the spouses to attract the application of these verses from the Holy Quran. These are, at the most, incidents of the psychology of the spouses in relation to each other. If the couple are incapable of mutual adjustment, that would show that they are psychologically incapable of meeting on a common ground, that they are askew like the skew lines of the mathematician which never meet. If there is simple aversion or hatred between them, that amounts to no more than a state or feeling. For such a state of affairs, neither of the spouses need be worthy of blame. But the verses clearly do not apply unless there is some fault, in the nature of a wrong action or a wrongful act, on the part of the wife in the first case and of the husband in the second case. I am accordingly of the opinion that under Muslim Law, such matters as incompatibility of temperaments, aversion or dislike cannot form: a ground for a wife to seek dissolution of her marriage, at the hands of a Qazi or a Court, but they fall to be dealt, with under the powers possessed by the husband as well s the wife under Muslim Law, at parties to, the marriage contract. Muhammad Jan, J. Saeeda Khanam filed a suit for divorce under the Dissolution of Muslim Marriages Act of 1939 against her husband Muhammad Sami. On the pleadings of the parties the following issue were framed :‑

1. Has the defendant failed to provide the plaintiff with maintenance for a period of two years or more before the date of the suit?

2. Has the defendant failed to discharge his marital ob ligations towards the plaintiff without reasonable cause for a period of three years or more before the date of suit?

3. Has the defendant been treating the plaintiff with cruelty within the meaning of Shariat?

4. Has the defendant deprived the plaintiff of her dower and dowry and how does it affect the suit?

5. Did the defendant level a false charge of immorality against the plaintiff?

6. Has the defendant been obstructing the plaintiff in saying her prayers?

7. Is the defendant of irritable nature, of changing demeanour and used to applying force for having his will enforced and what is the effect.

8. Is there a difference in the temperament of the spouses which has caused the plaintiff to hate the defendant and can this be a ground for dissolution of marriage?

9. Relief? All the issues were decided against the plaintiff except Nos. 2 and

5. Her suit was decreed on these issues relating to cruelty and false accusations of immorality. Regarding issues Nos. 7 and 8, the trial Court observed that much could have been said for the plaintiff before the decision in Mst. Umar Bibi v. Muhammad Din (A I R 1945 Lah. 51) ; but in view of that decision it was held that a divorce could not be granted on the ground of incompatibility of temperament, dislike or hatred. The defendant filed an appeal in the Court of the District Judge, Lahore, on the grounds, inter alia, that the trial Court had disbelieved the evidence adduced by the plaintiff on all the issues except 3 and 5 and should not have accepted it in respect of those issues either. It was further contended that the defendant had‑ not been guilty of cruelty or falsely accusing the plaintiff of immorality. The District judge held that the plaintiff had taken all possible pleas for the dissolution of her marriage but had failed to prove them. He considered the defence evidence better in all respect than the evidence produced by the plaintiff. In the course of his judgment he said that the plaintiff seemed to dislike her husband because she believed that he was‑ suffering from gout and some disease of the chest and that she appeared to be desirous of getting rid of him because "she had not se lected him and he .was not up. to her mark but he added that so long, as the defendant did not give her any grounds for the can cellation of marriage, the "ill‑fated" union must continue. He referred to A I R 1945 Lah. 51 and held that under the Muslim Law incompatibility of temperament, dislike' or hatred is no ground for divorce. The appeal was, therefore, accepted and the plaintiffs suit dismissed. From this judgment and decree Mst. Saeeda Khanam filed a second appeal in the High Court. It was contended on her behalf that the District judge had erred in not giving his own findings on all the issues framed in the case. The concluding portion of the District judge's judg ment, however, shows that he had disposed of all the points raised before him. It was further contended by the appellant that the findings of the District judge regarding cruelty and false accusations were vitiated by bias against the plaintiff and that, having recognized that the temperaments of the plaintiff and the defendant were incompatible, the District Judge should have decreed the plaintiff's suit. Counsel for the res pondent, on the other hand, relied on the above‑mentioned case, Mst. Umar Bibi v: Muhammad Din (A I R 1945 Lah. 51) for the proposition that incompatibility of temperament, dislike or hatred is no ground for divorce under the Muslim Law. Mr. Justice Kayani, who heard the appeal, entertained some doubts about the correctness of this decision and referred the appeal to a larger Bench for decision. In doing so he expressed the opinion that if Muslim Law recognized shiqaq as an adequate ground for divorce it would fall within section 2, clause (ix) of the Dissolution of Muslim Marriages Act and constitute a good ground for divorce. The question, therefore is whether shiqaq is recognized by Muslim Law as an adequate ground for divorce. The word "shiqaq" is derived from "shaqq" which means breaking into two. In the context of conjugal relations it has been translated by Maulvi Muhammad Ali and Abdullah Yusuf Ali as a "breach". The word "breach'", according to the Concise Oxford Dictionary, means the breaking or the neglect of a con tract, duty or promise. It also means breaking of relations, separation, disagreement or quarrel. Every breach, disagreement or quarrel between husband and wife cannot be a ground for divorce. The causes of the breach or disagreement must be ascertained and considered. If: the cause or causes are recogniz ed by Muslim Law as sufficient‑grounds for divorce, then the marriage can be dissolved, otherwise not. The cause of disagree ment for which divorce is claimed in this case is "incompati bility of temperaments". This term may be paraphrased as irreconcilable dispositions, or contradictory mental, moral and! emotional outlooks. If divorce were permissible on this ground' it would have to be proved like any other fact. There is no reliable evidence in this case to show that the temperaments of the parties are, incompatible and that they have always been at variance with each other on everything that matters. The allegation of incompatibility has been denied by the defendant; but the plaintiff says that there is so much difference in their temperaments that they cannot live together. This is rebutted by defence evidence. The observation of the District Judge that the plaintiff wants to get rid of her husband but so long as he does not give her any cause for divorce the "ill -fated" union must continue, does not, in my opinion, amount to any recognition of incompatibility, of the parties, temperaments. A few lines above this observation the District judge has said that "the plaintiff came from a middle class family. The a defendant educated her, permitted her to give up pardah, took her to places like Simla and allowed her to stand on her own legs". The change of circumstances, in the opinion of‑the District Judge, had turned the plaintiff's head and led her to believe that she was "more than a match" for her husband. This is not a finding or recognition that the temperaments of the parties are incompatible. I am of the opinion that if incom patibility of temperaments were a ground for dissolution of marriage that ground has not been established in this case. Now it may be considered whether incompatibility of tem peraments is a ground for divorce or not. In Maulvi Muhammad Ali's book called the Religion of Islam it is said that "shiqaq" or "breach." does riot justify the dissolution of marriage unless all possibilities of agreement have been exhausted. Chapter IV Verse 35 of the Holy Quran says: "If ye fear a breach between them twain appoint two arbitrators, one from his family and the other from. her's. If they wish for peace, God will cause their reconciliation : For God hath full knowledge and is acquainted with all things". (Abdullah Yusuf Ali's translation). In the preceding Verse, (34), it is said that if a wife becomes rebellious, the husband may admonish her and if that proves to be ineffective, he may deprive her of his company and, if necessary, even chastise her. If she becomes obedient he should take no further action against her. But, if the action taken by him "proves of no avail and an open breach between the spouses is feared, then according to Verse 35, two arbitrators should‑ be appointed to effect a reconciliation. A great deal of time and effort has been spent on arguments that if the arbitrators appointed in accordance with Verse 35 fail to effect a reconciliation, they may proceed to dissolve the marriage. To my mind that depends upon the authority dele gated to the arbitrators and the terms of their reference If the appointment is made by or with the consent of the husband and he delegates his authority of pronouncing divorce to the arbitrators, then, if they fail to bring about reconciliation, there appears to be no objection to their proceeding to dissolve the marriage, Otherwise, the arbitrators in dissolving the marriage which they were required to save and protect would, in my opinion, be acting without authority and going beyond the terms of their reference. A case has been relied on by the learned counsel for the appellant in which Imam Shafei has said that, according to Ibn Sirin from Ubaida, Hazrat Ali told the arbitrators that their duty was to effect a reconciliation and failing that to dissolve the marriage. Imam Shafei is of two minds on this subject and Imam Abu Hanifa is definitely of the opinion that it is not permissible for the arbiters to dissolve a marriage without delegation of authority from the spouses to do so. Imam Ahmad Ibn Hanbal and some others are reported to be of the same view. I, however, do not consider it necessary to go into this question because it does not arise in this case. Here, the wife had instituted a suit for divorce under the Dissolution of Muslim Marriages Act in a Court of law which was competent to grant the relief if there was a valid ground for it. The trial Court decreed the suit on grounds of cruelty and lian and the defendant never challenged the Court's jurisdiction to do so. The only question in the case, therefore, is whether incompatibility of temperament, dislike or hatred constitutes sufficient ground for divorce or not. Reliance was placed by the learned counsel for the appel lant on a case reported in Mishkat‑ul‑Masabih (Vol. II, p. 703) where one Jamila said to the Holy Prophet that she did not blame her husband Sabet‑bin‑Qais about his character or piety but she disliked "infidelity over Islam". The Holy Prophet asked her if she was prepared to return the garden given to her as dower and on her agreeing to do so the Prophet said: "Accept the garden and give her a single divorce". This report does not give the material facts of the case and I prefer the version given by Imam Razi: in his Tafsir‑ul‑Kabir, Vol. II, under Verse 35 Chapter IV of the Holy Quran. There it is stated that Jamila hated her husband Sabet‑bin-Qais as intensely as he loved her. She came to the Holy Prophet and asked him to‑dissolve her marriage because she hated her‑ hus band on account of his ugliness, short stature and black complexion. Sabet‑bin‑Qais requested the hit to order Jamila to return the orchard which he had given her. The Holy Prophet asked Jamila if she was prepared to do so. She said that she was prepared to give back to Sabet the orchard which, he had given her and even more. The Prophet replied "No, only the orchard" and said to Sabet "Take from her what you gave and divorce her". Sabet did this and the case is described as the first instance of khula in Islam. It will be noticed that according to this version the wife wanted a divorce; the husband agreed to give it provided she returned his orchard ; she agreed to do so and he gave her divorce. This was in consideration of what she gave and not on account of her hatred. This case, in my opinion, goes against the appellant. It shows that hatred of the husband by the wife, however intense, is not enough for the dissolution of marriage unless she can persuade him to release her from the marriage tie. The learned, counsel says that there is no mention of the husband asking for the return of the orchard in Mishkat‑ul‑Masabih; but, he has himself cited the Tafsir in which this is mentioned and it is undoubtedly a work of great authenticity. There is, in reality, no difference between the reports of this case as given in the Mishkat‑ul‑Masabih and the Tafsir‑ul‑Kabir. The version given in the Tafsir is a little more detailed and presents a fuller picture of the case than the other. It is not disputed that the prayer for divorce was made by Jamila in the presence of her husband and the omission of any mention in the Mishkat of the request made by the husband for the return of his garden is immaterial. According to the Mishkat also the Holy Prophet asked Jamila whether she was prepared to return the garden and it was only on her agreeing to do so that the Prophet told Sabet to divorce her. If the proposal for the restoration of the garden had not emanated from Sabet‑bin‑Qais it is difficult to believe that the Holy Prophet would have ordered him to divorce his wife without even tearing him. There is another Hadis (No. 138) reported by Ibn‑i‑Abbas in Mishkat Vol. II at page 702, .A woman named Barirah was married to a man called Mugis. "He used 'to roam about weeping in quest of her in the lanes of Madina" and one day the Holy Prophet expressed a wish that she should go back to her husband. `Is this an order? asked Barirah and the Holy Prophet said no, he was only trying to intercede and Barirah did not go back to her husband. The Holy Prophet, who did not force Barirah to go back to her husband, was not likely to force Sabet‑bin‑Qais to divorce his wife. If wives were allowed to dissolve their marriages, without the consent of their husbands, by merely giving up their dowers, paid or promised to be paid, the institution of marriage would be meaningless as there would be no stability attached to it. No authority has been cited before us to show that this is allowed in Islam and the position appears to be wholly unten able. The words of Verse 35 Chapter IV of the Holy Quran clearly indicate that if serious differences arise between a married couple, men of influence from their respective families should be required to settle the differences. If they fail to do so the parties should be left to act according to their wishes, in conformity with law. There are many people who, in spite of serious differences, do not resort to divorce. Some refrain from doing so on the ground that divorce has been stated by the Holy Prophet to be the most detestable of all lawful things near Allah (Mishkat‑ul‑Masabih Vol. II, p. 702 Hadis 137). Others refrain in deference to the family honour and for various other reasons; for example, the welfare of the children, the protection and position enjoyed by the wife of the comfort and convenience enjoyed by the husband. If the parties to the marriage, after taking everything into consideration, come to the conclusion that they cannot conscientiously live together, or even one of them comes to this conclusion, then they may separate and God will provide for both of them out of His all‑reaching bounty. (Chapter IV Verse 130 Holy Quran). If the husband alone wishes to dissolve the marriage he may, after fulfilling all the conditions of the marriage contract, dissolve it by means of talaq. If both parties wish to dissolve it the dissolution may take the form of khula or Mubaraat. A divorce by khula is effected with the consent of the parties and at the instance of the wife in which she gives or agrees to give consideration to the husband for her release. The consideration may be the abandonment of her dower or other rights or it may be any other agreement for the benefit of the husband. Mubaraat is also a dissolution of marriage by agreement ; the difference being that when the aversion is on the side of the wife and she gives the husband consideration for the separation the transaction is called "khula" ; when the aversion is mutual and both parties desire separation the transaction is called "mubaraat". A khula divorce is effected by an offer from the wife to compensate the husband if he releases her from his marital rights and acceptance by the husband of the offer. The offer of separation in mubaraat may proceed either from the wife or from the husband and as soon as it is accepted the dissolution, as in khula, becomes complete. Should the wife be unable to secure the consent of the husband to the dissolution of their marriage by khula or mubaraat the only course open to her, according to the law prevailing at present, is to sue for divorce in a Court of law under the Dissolution of Muslim Marriages Act, 1939. She may do so on any of the following grounds (i) that the whereabouts of the husband have not been known for a period of four years ; (ii) that the husband has neglected or failed to provide for her maintenance for a period of two years ; (iii) that the husband his been sentenced to imprisonment for a period of seven years of upwards ; (iv) that the husband has failed to perform, without reason able cause, his marital obligations for a period of three years ; (v) that the husband was impotent ,at the time of the marriage and continues to be so ; (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease; (vii) that she, having been given in marriage by her father or' other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years Provided that the marriage has not been consummated ; (viii) that the husband treats her with cruelty, that is to say, (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill‑treatment, or (b) associates with women of evil repute or leads an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran ; (ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim law. The plaintiff appellant's suit has been dismissed on all the grounds taken by her and only the question whether incom patibility of temperament, hatred or dislike is a ground recognised by Muslim Law for the dissolution of marriage has been referred to as for decision. Syed Amir Ali says, in the Second Volume of his Muhammdan Law (3rd edition) at p. 560, that according to the Sunnis and Shias when the marriage parties have no tangible cause of complaint against each other but a mutual aversion, due to incompatibility of temper or want of sympathy etc., they can dissolve the marriage by mutual agreement i.e., mubaraat. According to all authorities on Muslim Law if the aversion is only on the part of the wife she can have the marriage dissolved by khula. But, if she claims divorce by the coercive process of law she can do so only on grounds recog nized by Muslim Law as sufficient for divorce. Some of them have been specifically mentioned in clauses (i) to (viii) of section 2 of the Dissolution of Muslim Marriages Act. Others will be found in‑the text books on Muslim Law for example, "Ila" where the husband abstains from sexual inter-coruse for a period of not less than four months pursuant to a vow ; "Zihar" where he compares the wife to his mother or any other female relative within the prohibited degrees of consanguinity and "Irtidad" i.e. apostacy from Islam. The learned counsel for the appellant has failed to ‑show that incompatibility of temperaments, dislike or hatred is, per se, recognized by Muslim Law as sufficient ground for divorce: On 'the other hand, it has been held in Mst. Mustafa Begum v. Mirza Kazim Raza Khan (A I R 1933 Oudh 15) by Raza and Smith JJ. that under Muslim Law incompatibility of temperament cannot be a ground for dissolution of marriage by a decree of the judge, at the instance of the wife without the consent of the husband. The same view was taken by a Division Bench of this Court in Musammat Umar Bibi v. Muhammad Din (A I R 1945 Lah. 51). For the reasons given above, I am of the opinion that incompatibility of temperament, dislike or even hatred on the I part of the wife for the husband is not a valid ground fort divorce under Muslim Law unless the husband agrees to it. M. KHURSHID ZAMAN, J.‑‑I agree. K.M.A. Appeal dismissed.