Khula

In the present case when the husband (defendant) took a second wife, he contravened the provisions of the Muslim Family Laws Ordinance, 1961 (Ordinance of 1961) since neither any application was filed nor the permission of the Arbitration Council was sought in accordance with the requirements set out under section 6 of Ordinance of 1961

However, instead of adjudicating this ground, the appellate court had ordered the dissolution of the marriage on the basis of Khula

Appellate court, therefore, fell in error by granting a decree for the dissolution of marriage on the basis of Khula when it was not sought by the wife (plaintiff) nor had she given express or implied consent thereto

High Court had also not recorded any reasons in support of its conclusion to order dissolution of marriage on the ground of cruelty

Appellate court and the High Court fell in error by ordering the dissolution of the marriage between the husband and the wife on the ground of Khula and cruelty respectively

Supreme Court held that the dissolution of the marriage between the husband and the wife was on the basis of the ground described under clause (iia) of section 2 of the Dissolution of Muslim Marriages Act, 1939

Supreme Court declared that the decree of the trial court to the extent of restitution of conjugal rights was not sustainable; that the judgments and decrees to the extent of restitution of conjugal rights and dissolution of the marriage on the ground of Khula or cruelty were illegal and accordingly set aside; that the decrees granted by the Trial Court regarding dower, dowry articles, maintenance and visitation schedule shall, therefore, sustain and were accordingly upheld.

Plea raised by petitioner/husband was that marriage between spouses relating to "Fiqah-e Jafria" could only be dissolved after recitation of "Seeghas" by husband without any influence or coercion

Validity

Wife can seek dissolution of marriage by way of Khula from Court even if her husband does not give consent for the same, and even if spouses belong to "Shia" sect

In suit for dissolution of marriage on failure of reconciliation proceedings, Family Court under section 10 (5) of Family Courts Act, 1964 immediately passes decree for dissolution of marriage and in case of dissolution of marriage through Khula, may direct wife to surrender upto fifty percent of her deferred dower or upto twenty five percent of her admitted prompt dower to husband

No clog can be imposed upon power of Family Court to dissolve marriage on the basis of Khula, when reconciliation is not possible

High Court declined to interfere in judgment and decree passed by Family Court, which while dissolving marriage through Khula in exercise of powers conferred under section 10(5) of Family Courts Act, 1964 did not commit any illegality

Constitutional petition was dismissed, in circumstances.

Legal question that came up for determination before the High Court was as to "Whether a wife who obtains dissolution of marriage through khula is legally entitled to recover the entire amount of deferred dower?"

Respondent No. 3 (wife) instituted a suit before the Family Court against the petitioner (husband) seeking dissolution of marriage, recovery of deferred dower amounting to Rs. 200,000/-, maintenance allowance, and dowry articles worth Rs.371,200/-

The petitioner resisted the suit, and upon failure of reconciliation efforts, the Family Court decreed the dissolution of marriage under S. 10(5) of the Family Courts Act, 1964 on the basis of Khula

After recording of evidence, the Family Court partly decreed the suit, awarding Rs.5,000/- per month for the iddat period and Rs.100,000/- as alternate value of dowry articles, however, the issue of deferred dower remained undecided

On appeal, the Appellate Court remanded the case for adjudication on all issues

The Family Court decided the case afresh, awarding Rs.200,000/- as deferred dower and maintaining the earlier grant of alternate value of dowry articles

The petitioner's appeal against this decision was dismissed and thereafter he filed the present constitutional petition

Held, that giving of dowry articles to daughters is a deep routed practice in our society followed by the parents of all classes irrespective of their financial status

The alternate value of dowry articles as fixed by court below even if seen in conjunction with the admission of the petitioner that some dowry articles were given to the respondent, the same appeared to be reasonable

Therefore, findings of the courts below regarding dowry articles were unexceptionable

Regarding the issue of deferred dower the High Court held that the respondent, having sought khula due to the petitioner's misconduct, was entitled to the full amount of deferred dower

Given the duration of the marriage, its consummation, and uncontroverted evidence of the husband's mistreatment, the claim for deferred dower was rightly decreed, hence, the constitutional petition was dismissed as meritless

Petition dismissed.

As khula is a special and exclusive right given to a woman, which is not available to a man, she can seek dissolution on the basis of khula in which one of the consequences is that she can re-marry the same man, without entering into intervening or intermediary marriage i.e. halala.

She must in unambiguous and unequivocal terms express her intention to exercise such right before the court, that is to say, she must put her offer before the court that she seeks release from the marriage by waiving her dower and only then the court can grant her khula

Fundamentally, the principle is that khula cannot be granted, if it has not been explicitly sought for by the woman because she has to give up her right to dower

Hence, a court cannot on its own pass the decree of khula if it has not been sought for by the woman

Therefore, her consent is vital.

Plaintiff/wife claimed the dower (ten tolas gold ornaments and one-third share of the house) against the defendant/ husband on the basis Kabeen Nama (marriage-deed)

Family Court decreed the dower the petitioner/plaintiff prayed for, which judgment and decree was maintained by the Appellate Court

Contention of the petitioner/defendant that the respondent recorded her statement before the Family Court wherein she prayed for dissolution of marriage on the basis of Khula, therefore, she was not entitled to claim any right on the basis of Kabeen Nama/Marriage-deed

Held, that relevant order-sheet revealed that after the statement of the respondent, the Family Court observed that, in view of dispute regarding payment of dower, the same would be decided after completion of evidence

Portion of the statement of the respondent recorded in the witness-box showed that she was ready to join her husband subject to his good behavior and fulfillment of her rights as per the marriage-deed

Petitioner, instead of fulfilling valid demands of the respondent, contracted second marriage, which reflected his conduct and the respondent could not be forced to relinquish her rights

Holy Quran had done away with every custom of pre-Islamic times depriving women of their rights including dower whereby when a man lost interest in his wife, he would to harass her to the extent that she would forego her rights including her dower

By using such pretext, on one hand, the marriage would be dissolved on the basis of Khula and on the other hand, the wife would be compelled to return what she was given at the time of marriage

Family Court, after the recording evidence and truly appraising the same, decreed the dower the plaintiff prayed for

No illegality or infirmity was found in the impugned judgment passed by the Appellate Court

Constitutional petition was dismissed, in circumstances.

Petitioner / husband was aggrieved of dissolution of marriage by Family Court on the basis of khula after reconciliation proceedings between parties had failed

Validity

Family Court under S.10(3) of Family Courts Act, 1964 may at pre-trial stage, ascertain points of controversy between parties and attempt to effect compromise between them and for such purpose neither provisions of Family Courts Act, 1964 nor the rules framed thereunder provide any procedure

It has been left to discretion of Family Court to do so, keeping in view the peculiar facts and circumstances of each case

No hard and fast rules can be laid to bind down Family Court to strictly follow the same for the purpose of effecting compromise or bringing reconciliation between parties

In the present case despite efforts, parties did not arrive at any reconciliation, and respondent / wife was not willing to reconcile with petitioner / husband at any cost

Family Court could not compel any party to effect compromise against his / her wishes instead could make a genuine effort to bring reconciliation between parties amicably

High Court declined to interfere in judgment and decree passed by Family Court as petitioner failed to point out any illegality or perversity

Constitutional petition was dismissed in circumstances.

Contention of the plaintiff /wife was that the decree of dissolution of marriage should have been passed on the basis of cruelty

Validity

Evidence having been adduced, in the present case, revealed that the respondent/ husband had never treated the petitioner/wife with cruelty, physically and/or mentally, however, she complained about the behavior of her in-laws while the respondent was living abroad, which had brought about negative psychological impact on her life

In spite of the respondents' love, unwillingness of the petitioner to live with him (respondent) might be seen in such background (cruel behavior of in-laws)

Wife, generally and in the absence of her husband particularly, would not simply expect but pins high hopes, and rightly so, on her in-laws to let her live with them in a conducive and congenial atmosphere within four corners of a house

Given our social norms, a wife would ordinarily do her best to live peacefully; she would most often show resilience in the face of uncouth and even cruel behavior of her husband and other in-laws for the sake of her own as well as for the honour and dignity of her parents ; she would only complain either in an extreme situation or not at all

High Court maintained the impugned judgment and decree of the dissolution of marriage passed on the basis of Khula

Constitutional petition was disposed of accordingly.

Petitioner's real brother since deceased was married to respondent, which relationship ended in divorce on the basis of Khula

Petitioner sought issuance of Divorce Effectiveness Certificate but authorities referred the matter to Council of Islamic Ideology

Contention of respondent was that she had reconciled with her husband during his life time therefore, decree of divorce was not effective on her rights

Validity

Decree for dissolution of marriage did not become ineffective merely because copy to Chairman was not sent by Court within prescribed period

Effectiveness would be reckoned from the date of due service and efflux of requisite period

It was not shown that decree was sent by Court within 3 days, however, as copy of decree was received by Union Council on 27-8-2016, therefore, period of 90 days was to commence therefrom

Presence of word "revoke" in S. 7(3) of Muslim Family Laws Ordinance, 1961 and its conspicuous absence in S.21(3)(b) of Family Courts Act, 1964, left no manner of doubt that decree of Khula could only become ineffective if within 90 days a reconciliation had been affected between the spouses on the basis of mutual or bilateral arrangement

Unless there was mutuality, reconciliation had not been effected between the parties and decree did not become ineffective for the purpose of S.21(3)(b) of Family Courts Act, 1964

Composition, functions and procedure of Council of Islamic Ideology and its role in terms of Art.230 of the Constitution was of advisory nature

Primary object of Council of Islamic Ideology was to advise Parliament, Provincial Assembly, President or Governor to ensure conformity of laws with the Injunctions of Islam

Matter was between private individuals and it could not have been referred to Council of Islamic Ideology

High Court directed the authorities to issue Divorce Effectiveness Certificate and set aside order passed by the authorities

Constitutional petition was allowed accordingly.

Such kind of dissolution of marriage is known as "Talaq-ul-Baayen", and in such like case, intervening marriage (Halala) is not a condition precedent for re-union of spouses, however, only condition is to perform fresh nikah.

Wedlock as well as the fact that rukhsati did not take place were admitted, however, the only dispute between the parties was of maintenance charges

Plea of misreading and non-reading of evidence was raised but could not be referred or showed

Petitioner (husband) in his written statement admitted that he initially started sending maintenance charges to the respondent (wife) for some period during which he kept the respondent on hopes to arrange for her to travel abroad to live together but he failed

Since the respondent was ready to join/live with the petitioner but the petitioner in his written statement admitted that he could not arrange a visa for the respondent to live with him, therefore, he left her with no option but to seek Kula as a girl could not be made to sit for hopes of rukhsati for indefinite period

Bare reading of Ayat No.48 of Surah-Ahzab of the Holy Quran reflects that despite of wedlock if the husband has not touched the wife even then he is directed to release the wife handsomely

Concurrent findings of two Courts below did not require any interference, hence this petition was dismissed.

Mandatory for the wife to return the dower on the basis of 'khula' under S.10(4) of the Family Courts Act, 1964.

Appellant/plaintiff (wife) alleged that defendant/respondent (husband) started torturing her physically/mentally after a month of marriage; that respondent was a psychological patient; that respondent often did not remain in his senses and used to abuse the appellant; that as a result of physical assault, the appellant had lost her ear; that respondent had finally deserted her after giving her beating; that she could not live with appellant within the limits ordained by Allah Almighty; that respondent had never paid any maintenance to appellant since marriage; that dower was not paid; that dowry articles were in possession of respondent

Respondent filed counter suit for restitution of conjugal rights

Trial Court consolidated all the suits and decreed suit for dissolution of marriage on ground of Khula; decreed suit for recovery of dowry articles; and dismissed suit for maintenance and dower for want of proof

Appellant filed appeal in Shariat Appellate Bench of High Court (AJ&K) which was dismissed

Appellant contended that statement of appellant and the maid who was present at the time of physical assault was sufficient for granting decree of dissolution on ground of cruelty; and that appellant claimed dissolution of marriage on ground of cruelty; and that appellant claimed dissolution of marriage on ground of cruelty instead of khula and proved the fact of cruelty

Validity

Courts below reached the conclusion that appellant failed to prove the factum of cruelty

Appellant had categorically stated in plaint that she had developed hatred towards her husband and she would not live with him at any cost rather would prefer death

After such statement it could not be said that dissolution was not claimed on the basis of khula

Respondent had specifically refuted the claim of appellant and stated that she was not ousted from the house by him rather she went out voluntarily, and record revealed the same

Appeal was dismissed accordingly.

Emotion of hatred can be inferred on the basis of circumstances of each case, especially from the statement of wife recorded by Court

Court had to only observe whether husband and wife can live together in order to perform their marital obligation

Peak of hatred /aversion would be that wife submits that Court may hang her and whatever may be the circumstances, she is not prepared to live with her husband.

Need to seek Khula can arise in two situations: firstly, the wife may be aggrieved of unbecoming attitude of her husband; and secondly, she may for her own personal reasons such as abhorrers/disliking for the husband to claim Khula

Where the disliking/hatred of the wife is not because of coercion/duress or other un-towards behaviour of the husband, the wife may seek separation by the restoration of dower and where the wife was constrained to seek divorce because of the obnoxious nature/behaviour of the husband.

Held, that the Court framed the issues regarding the allegations asserted by the lady and those were not proved by her ; at such stage the Court could pass decree for dissolution of marriage on the basis of some condition, but it would not be dissolution of marriage on basis of Khula

Wisdom behind this was that the parties should not be forced to live in a hateful union.

Held, that decree of Khula could be passed even when there existed no ground but lady was not willing to settle down with the husband, however, the condition had to be fulfilled ; and the lady might be asked to return the benefits, but not the full dower rather the half one

Certainly in such situation the lady would have to forego rights which she had gained from the husband.

Court had to put the offer of the lady to the husband and on the reply of husband in positive, the decree of Khula could be passed; secondly, if the conditions were put by the lady, for which the husband was not ready or he put some more conditions, then the same would be put to the lady

Unless the spouses were ready on the conditions, the decree could not be passed on the basis of Khula

Now the Court would frame the issues, regarding the other grounds agitated by the lady for dissolution of marriage and would decide the same on the basis of available record.

Evidence of plaintiff with regard to dowry articles was cogent and convincing as compared to the evidence produced by the defendant

Khula could be granted by the Family Court if wife had failed to establish any allegation leveled in the plaint

Family Court, in the present case, had granted Khula as reconciliation between the parties had failed

Such findings of Family Court were not based on evidence and same could not be challenged through constitutional petition

Right for dissolution of marriage on the basis of Khula was absolute and contingent upon restoration of dower to the husband

Muslim woman had been given right to get herself released from the bond of marriage, if she could not live with her husband within the limits prescribed by Allah Almighty

Wife in such event had to seek Khula by foregoing dower received by her from her husband in consideration of marriage

If husband had left his wife giving divorce then he would not be entitled to receive anything back giving by him to his spouse

If wife herself deserted her husband then she had to give something in lieu of her release

Courts below were competent to draw inference while delivering the judgments

High Court in constitutional jurisdiction could not interfere into such findings unless and until miscarriage of justice had been established

Constitutional petition was not maintainable when evidence in the case had properly been appreciated

Appellate Court had passed the decree after properly evaluating the evidence available on record

Constitutional petition was dismissed, in circumstances.

Dissolution of marriage by way of Khula was always and invariably subject to return of dower, unless waived off by the husband as a matter of grace.

Husband filed application for rejection of plaint on the ground that non-Muslim female could not invoke jurisdiction of Family Court for dissolution of marriage on the basis of khula

Application for rejection of plaint was dismissed concurrently

Validity

Khula was purely an Islamic concept and non-Muslim woman could not claim the same under S.10(4) of Family Courts Act, 1964

Family Court had dissolved the marriage on the basis of khula without ascertaining and establishing on record whether such concept was available in the personal law of wife

Impugned judgments and decrees were set aside and case was remanded to Family Court to decide the same afresh after framing issues and recording of evidence in accordance with law

Constitutional petition was accepted in circumstances.

Family Court dissolved marriage in consideration for khula by fixing an amount which was not incorporated in the Nikah Nama

Contention of husband was that the amount fixed by the Family Court as consideration for khula was not mentioned in the Nikah Nama

Validity

Wife could not prove that she was entitled to obtain decree for dissolution of marriage on the grounds of cruelty, non-performance of marital obligations and non-payment of maintenance allowance as her husband was out of country

Person who had asserted a point must prove the same

Wife was bound to prove her claim that ornaments were snatched away from her, by her husband or his sister or brother which she could not prove

Decree for dissolution of marriage could be passed without consideration of khula

When khula was due to some fault on the part of husband then it was not lawful for him to take back anything from his wife

Wife herself deserted in the house of her parents and she filed a suit for dissolution of marriage

Wife did not live with her husband continuously

Wife had been granted a decree on ground of khula due to hatred against her husband

No fault was pointed out on the part of husband and Family Court was bound to restore the property/dower received by the wife

Husband was entitled to receive entire dower amount from wife instead of amount fixed by the Family Court in case of dissolution of marriage on khula when snatching of ornaments had not been proved

Wife had not arrayed party to the sister and brother of husband against whom allegation of snatching away ornaments was levelled

When wife had demanded khula as of right then marriage had to be dissolved on restoration of what she had received in consideration of marriage when parties would not observe the limits ordained by Almighty Allah

Family Court had rightly dissolved the marriage on the basis of khula but failed to fix amount as consideration for khula as marriage was to be dissolved on the condition of repayment of dower amount received by wife

Dower in the form of gold ornaments was paid to the wife and specific amount of ornaments had been incorporated in the Nikah Nama

Marriage of the spouses should have been dissolved in consideration for khula i.e. amount incorporated in Nikah Nama instead of amount fixed by the Family Court

Wife would be entitled to obtain a decree for dissolution of marriage on the condition of repayment of entire dower amount incorporated in the Nikah Nama as consideration for khula

Appeal was accepted accordingly.

Both the Family Court and Shariat Court had concurrently decreed the suit for dissolution of marriage on the basis of khula

Contention of husband was that suit for dissolution of marriage was filed on the ground that he was impotent and not on the basis of khula

Validity

No law could compel wife to live with husband when she had stated that at every cost she wanted separation and was not willing to live with her husband

Spouses should be separated if it was impossible for them to live together within the limits ordained by Almighty Allah

Although main ground for seeking the decree for dissolution of marriage was that husband was impotent, however, at the same time from the statement of wife it could be conceived that she did not seem to live with the husband as a wife, in such circumstances, it would be immaterial to discuss that whether husband was potent or impotent

Marriage could be dissolved on the basis that court was satisfied that spouses could not live as husband and wife within the limits ordained by Allah and it was not necessary that same could only be dissolved on the basis of khula

Both the courts below had attended the controversy in a legal manner and passed the impugned judgments while assigning the solid reasons

No illegality or irregularity had been pointed out in the impugned judgments

Appeal was dismissed in circumstances.

When dower was fixed as on demand unless contrary was proved by husband, presumption would be that such dower was not paid.

Trial Court passed preliminary decree and granted Khula to wife and framed issues pertaining to payment of dower amount by husband to wife

Validity

Contents of Nikahnama showed that dower amount was supposed to be paid on demand but nothing had been mentioned that anything was paid at the time of marriage and execution of Nikahnama

Family Court was required under S.10(4) of West Pakistan Family Courts Act, 1964, to pass decree of dissolution of marriage forthwith and also to restore husband Haq Mehr (dower) paid in consideration of marriage 'at the time of marriage', if reconciliation failed

Family Court had no option except to pass preliminary decree when reconciliation had failed, particularly when wife made clear statement that she was not willing to continue marriage and union had become hateful

No party could be compelled to live with the other even if there were compatibility issues only

Husband himself stated in written statement that decree of Khula could be passed forthwith subject to payment of dower amount

High Court in exercise of Constitutional jurisdiction declined to interfere in the order passed by Family Court

Petition was dismissed in circumstances.

Marriage should be dissolved on the basis of Khula, when wife is determined not to live with her husband because of her hatred for him and without any fault on the part of husband.

Suit for dissolution of marriage was decreed on the basis of khula subject to relinquishment of her dower amount by wife or portion of the plot equal to dower amount

Wife had developed aversion and hatred towards the husband

Settlement/agreement without any condition to surrender the right of gift on the part of wife was arrived at between the parties

Contention of husband was that after dissolution of marriage on the basis of khula, according to agreement, wife was bound to return the plot to husband, which was mentioned in Column No.16 of Nikah Nama

Validity

Under the Islamic Law, if the dissolution of marriage was made on the basis of khula, the wife was under an obligation to return/forgo the dower amount and the benefits derived from the husband but said principle was applicable when the khula was claimed by the wife without any fault of the husband but if the aversion or hatred was result of the conduct of the husband which could be mental or physical torture, non-payment of maintenance allowance etc., then the return of dower amount was not essential

Property having been given to wife as a bridal gift could not be termed as "Haqmehr"/Dower, therefore, it was not returnable in consideration of "khula"

Constitutional petition was dismissed.

Suit for dissolution of marriage on basis of khula was decreed by Trial Court and Appellate court modified said decree by ordering wife to return dower in lieu of khula

Validity

Wife had conceded that at the time of ouster from the house, she had taken gold with her which was given to her by the husband at the time of marriage

If the husband was not at fault but the wife for some other reasons wished to end the marriage, then it was permissible for the husband to demand and receive some financial payment, however, it would be superior for him not to take more than the actual stipulated dowry

Under proviso to S.10 of the West Pakistan Family Courts Act, 1964 after decree for dissolution of marriage on basis of khula was passed, at the same time dower was to be restored to the husband

Appellate Court had taken the correct view

Constitutional petition was dismissed, in circumstances.

Suit for dissolution of marriage on basis of Khula was decreed and wife was directed to return gold and land received from husband in lieu of decree of Khula

Contention of wife inter alia was that a specific amount of money was mentioned in column 13 of the Nikahnama which was to be the consideration for the Khula and that the gold was a bridal gift whereas the land was not Haq Mehr but a validly made gift in the wife's favour

Validity

Under Islamic Law marriage between a Muslim man and woman could be dissolved on basis of Khula for which some consideration is given in the form of dower which the wife was entitled to receive at the time of demand

Wife was also entitled to receive bridal gifts at the time of marriage which was solely the wife's property

Once gift of land was made, the title/ownership of the same departed from the original doner and vested to the donee which, without consent of the latter, could not be returned

Amount of money was mentioned in column 13 of the Nikahnama in the present case, and consideration for Khula was to be the said amount which was specifically mentioned in the Nikahnama

Gold and land were bridal gifts which were to remain in the ownership of the wife

High Court set aside findings of the courts below and directed that wife be allowed to retain the gold and land

Constitutional petition was allowed, in circumstances.

She need not come out with logical objective and sufficient reasons regarding her claim for Khula', it is enough to show that she had developed a fixed aversion against her husband