1989 PLP 25 (CLC)

‑‑‑S.5‑‑Dissolution of marriage by way of Khula‑‑Return of articles‑ Marriage between spouses dissolved by way of Khula on return of dower and articles which wife had received from husband at time of marriage‑‑Husband failing to prove by evidence that any ornament or any other articles had been given by him to wife at time of marriage and which she refused to return‑‑Dissolution of marriage by way of Khula ordered by Family Court on condition of foregoing entire dower amount by wife. Abrar Hassan for Petitioner. Munir‑ur‑Rehman for Respondent No.l. Nemo for Respondent No.2. Date of hearing: 13th September, 1988. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is filed by the petitioner who was defendant in Family Suit No.682 of 1987 to challenge the judgment and decree of the Family Court dated 13‑1‑1988 passed in Fa!‑ Suit No.682 of 1987. By the impugned judgment the lea: ‑‑ .' Fri;‑i". Judge granted 'Khula' to respondent No.l on the condition that si;, will forego her entire dower amount. The learned counsel for the petitioner very vehemently contended that the judgment and decree of the trial Courts contrary to the rule laid down in the case of Bilqees Fatima v Najmul Ikram P L D 1969 Lah. 551 and Abdul Rahim v. Shahida Khan P L D 1984 SC

329. The contention of the learned counsel for the petitioner is that the trial Court had framed the following two issues relating to maltreatment and non‑maintenance of respondent No.l by the petitioner in the suit instituted by respondent No.l seeking dissolution of marriage: ‑ (1) Whether the plaintiff was treated with cruelty by the defendant and his family members? (2) Whether the plaintiff was not properly maintained by the defendant?" However, in spite of decision on both the above issues by the Court in the negative the Family Court ordered dissolution of marriage by way of 'Khula'. It is accordingly urged by the learned counsel for the petitioner that in view of the findings by the Court that the above issues could not be proved by respondent No.l, there was no material before the Family Court to reach the conclusion that the respondent No.l was entitled to dissolution of marriage by way of 'Khula' on relinquishment of her dower amount. It is urged by the learned counsel that before a 'Kazi' could pronounce dissolution of marriage by way of Khula it must be established before him that there is specific reason for the wife in refusing to live with the husband and that because of such reason it would not be possible for the parties to observe the limits prescribed by God. Learned counsel for respondent No.l on the other hand while supporting the judgment of Family Court contended that the trial Court had the opportunity of observing the conduct of parties during the course of pre‑trial proceedings in the case and as the learned Judge noticed a positive intention on the part of respondent No.l not to live under any circumstance with the petitioner, he rightly ordered dissolution of marriage by way of 'Khula' on condition of restoration .of the benefits received by respondent No.l from the petitioner at the time of marriage. After hearing the learned counsel for the parties at length I am of the view that this petition must fail. It is true that the two issues framed by the learned Family Court in 'the suit instituted by respondent No.l, with regard to maltreatment and non‑maintenance of respondent No.l by the petitioner were answered against respondent No.l but the learned Judge both during the trial of the case as well as during pretrial proceedings reached the conclusion that respondent No.l had expressed definite intention not to live with the petitioner under any circumstance. It A is true that respondent No.l had not spelt out any cogent reason for her refusal to live with petitioner but in my view this was neither necessary not it affected the power of 'Kazi' to order dissolution of marriage by way of 'Khula'. I may venture to say here that right of a woman to obtain 'Khula' on her offer to return all the benefits B received by her from her husband is almost kin to the right of . man to pronounce 'Talaq' on his wife without disclosing any reason. Therefore, in my view, where a woman in no ambiguous terms expresses her intention before 'Kazi' not to live with her husband and ask for 'Khula' offering to restore the benefits received by her from he C husband she cannot be refused 'Khula' on the ground that she has failed to give any reason or ground for her refusal to live with he husband or that the reasons disclosed by her for refusal to live with her husband are not cogent or convincing. The two incidents relating to Sabit Ibn‑i‑Qais referred to in the celebrated case of Bilqeesl Fatima v. Najmul Ikram P L D 1959 Lah. 575 in which the Holy Prophet (peace be upon him) ordered Sabit to pronounce Talaq on I his two wifes Jamiia and Habiba on two different occasions on condition of return of property received by them to Sabit, clearly shows that the Holy Prophet (peace be upon him) did not enquire into the reasonableness of the demands of Jamila and Habiba while ordering 'Khula' in each case. The verse of Holy Quran referred to in the case of Bilqees Fatima v. Najmul Ikram, which governed the cases of 'Khula' clearly shows that in ordering 'Khula' a Kazi has to satisfy himself that if the marriage is continued the parties may not keep F the limits prescribed by God. The following observation of Supremel Court in this behalf in the case of Abdul Rahim v. Shahida Khan PLD 1984 SC 329 may be reproduced here with respect which endorsed the observation made in the case of Bilqees Fatima v. Najmul Ikram:‑ "In the Full Bench judgment of the Lahore High Court the learned Judge, after discussing the two instances relating to Sabit Ibn‑i‑Qais, wherein his first wife Jamila and then his second wife Habiba had sought dissolution of their marriage from him and the Holy Prophet had enforced the right of Khula, on both occasions, the learned Judges observed:‑ "In neither case was Sabit in any way to blame, and so far as Jamila is concerned she had expressly said that she found no fault with him ,and that the sole reason why she wanted a release was that he was ugly and she could not bear him, she being herself a handsome woman. In neither case did the Holy Prophet make any pronouncement as to the reasonableness of the attitude of the wife. He was just satisfied that the husband and wife could not amicably live together." After an elaborate discussion of all the relevant factors, the conclusion was, thus expressed:‑ "Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received." The above view of the Full Bench was not only accepted in Mst. Khurshid Bibi v. Baboo Muhammad Amin which was judgment delivered by a Bench of five Judges of this Court but the doctrine was further discussed and elaborated. It was found that in case of dislike by the wife of her husband, Islam concedes the right to the wife, in circumstances of extreme discard and where life becomes a torture for both, on account of the fixed aversion on the part of the spouses, to seek dissolution of marriage on the ground 'this right, however, is not an absolute right by which the wife can herself dissolve the marriage but is The success of her right depends upon the Qazi's reaching the conclusion that the spouses cannot live within the limits of God. However, the Court, while coming to a conclusion on this question, shall bear in mind that it would be more consistent with the letter and spirit of the Qur'an which places the husband and the wife on an equal footing in respect of rights of one against the other to construe the classical incident of Sabit‑bin‑Qais as meaning that the person in authority, including the Qazi, can order separation by Khula even if the husband is not agreeable to that course. Of course, the Quranic condition must be satisfied for the husband and the wife cannot live together in harmony and in conformity with their obligations." In the light of above discussion I will now examine whether the Family Court was justified in granting 'Khula' to respondent No.l after having decided the two issues against her in the case. The learned Family Judge reached the conclusion in the case on the basis of his personal observations during the pretrial proceedings and the statement of respondent No.l before him during the trial, that she has made up her mind not to live with the petitioner under any circumstances, could in such circumstances, the spouses observe the limits prescribed by God by continuing in the marriage bond? Could E in these circumstances, a harmonious life conceived by Islam under the bonds of marriage could be obtained? The answers to all these questions must be found in the negative. The learned Family Court therefore, rightly ordered dissolution of marriage by way of Khula as there was strong apprehension that if the marriage is allowed to continue the spouse may transgress the limits prescribed by God. I may also mention here that after partly hearing the counsel for the petitioner in case on 30‑8‑1988, I directed the petitioner and respondent No.l to appear in person on 1‑9‑1988. Accordingly, both petitioner and respondent No.l appeared before me in Chamber at 12 noon. My own observation after hearing the petitioner and respondent No.l was that respondent No. l is positive in her decision not to join the petitioner though. she stated that she has no specific complaint against petitioner. There can be no doubt that if husband and wife are not willing to live together the harmonious concept of life contemplated in Islam under the situation of marriage cannot be obtained and, therefore, the parties cannot be expected to keep themselves within the limits prescribed by Allah in such circumstances. The learned Family Court, therefore, rightly ordered dissolution of marriage of respondent No.l with the petitioner by way of 'Khula'. Mr. Abrar Hassan, the learned counsel for the petitioner however made a grievance that the Family Court while dissolving the marriage by way of 'Khula' should have directed respondent to restore all the benefits which she had received at the time of marriage. There can be no cavil with the pre‑position canvassed by the learned counsel but unfortunately there was no material either before the trial Court or before me to establish the benefits derived by respondent No.l from the petitioner at the time of her marriage. Learned counsel was unable to point out anything either in the evidence of the petitioner or of respondent No.l to show that any ornaments or any other article was given by the petitioner to respondent No.l at the tirrre of marriage and which she refused to restore. In the absence of evidence in this regard the learned Family Court rightly ordered that marriage between petitioner and respondent No.l shall stand dissolve on condition of foregoing the entire dower amount by respondent No.l. No case for interference is made out. The writ petition is accordingly dismissed but in the circumstances of the case there will be no order as to costs. As a result of dismissal of main petition the miscellaneous application is also dismissed. M . Y . H . / M‑575/ K Petition dismissed.