khula is controlled right or not

Under the laws of Pakistan, a wife has the right to terminate an unhappy amarriage by filing a
suit for dissolution of marriage on any ground mentioned in the dissolution of Muslim Marriages
Act 1939. This had become a very complex and complicated procedure, as it would take years to
conclude. However, the courts in Pakistan in Khursheed Bibi's case have held:
(b) Muhammadan Law - Marriage - Concept Marriage among Muslims is
not a sacrament but a civil contract. Divorce Man and woman on equal
footing in respect of rights of one against the other - If husband given right
to divorce wife, later too entitled to separation by means of Khula.
Warning against free exercise of such rights by husband or wife placed
on moral rather than legal plane (PLD 1959 Lah. 566).

In Bilqees Fatima's case the Supreme Court has' held:

(b) Muhammadan Law - Divorce - Marriage Khula - Wife entitled to
dissolution of marriage on restoration of what she has received form
husband in consideration of marriage, if Judge apprehends that parties
will not observe "limits of God", i.e. , harmonious married state as
envisaged by Islam will not be possible - Husband's assent not necessary
- Judge may order partial or total restoration of benefits - Wife's right to be
enforced by whatever procedure is available in Pakistan.
(PLD 1967 BC 97)
Similarly the Court In 2000 BCMR 1563 Muhammad Rafiq~e VB Mst Kaneez
Fatima have held:
(b) Muhammadan - Divorce - Khula - In case of dislike by wife of her
husband, Islam concedes right to wife in circumstances of extreme
discord and where life becomes a torture for both, on account of fixed

aversion, on party of spouses, to seek dissolution of marriage on ground

of Khula Such right, however, is not an absolute right by which the wife
can herself dissolve the marriage but is a controlled right, the success of
which depends upon the Qazi's reaching the conclusion that the spouses
cannot live within the limits of God - Principles.
Khula is right of a woman to seek a divorce from her husband in Islam for compensation (usually
monetary) paid back to the husband from the wife. Based on traditional fiqh, and referenced in
the Quran and hadith, khula allows a woman to initiate a divorce through the mutual consent of
the husband or a judicial decree. However, differing interpretations of khula exist across Islamic
schools of law and regions in regards to the compensation, consent of the husband, role of the
court and judge, number of witnesses a woman must have, and the iddah (waiting) period, and
child custody.

Quran

"Divorce is twice. Then, either keep (her) in an acceptable manner or release (her) with good
treatment. And it is not lawful for you to take anything of what you have given them unless both
fear that they will not be able to keep (within) the limits of Allah . But if you fear that they will
not keep [within] the limits of Allah , then there is no blame upon either of them concerning that
by which she ransoms herself. These are the limits of Allah , so do not transgress them. And
whoever transgresses the limits of Allah - it is those who are the wrongdoers."2:229 AL-QURAN

"And if a woman fears from her husband contempt or evasion, there is no sin upon them if they
make terms of settlement between them and settlement is best. And present in (human) souls is
stinginess. But if you do good and fear Allah then indeed Allah is ever, with what you do,
Acquainted."4:128

"And for those who are pregnant (whether they are divorced or their husbands are dead), their
iddah (prescribed period) is until they deliver (their burdens)..."65:4

Hadith

The wife of Thabit bin Qais came to the Prophet and said, "O Allah's Apostle! I do not blame
Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in unIslamic manner if I remain with him." On that Allah's Apostle said to her, "Will you give back
the garden which your husband has given you as Mahr? "She said, "Yes." Then the Prophet said
to Thabit, "O Thabit! Accept your garden, and divorce her once."

"When Rabia bint Masood obtained Khula from Thabit, the prophet asked her to wait until one
menstrual cycle before she could go to her home". (An-Nissai, Abu Daud, Tirmidhi)
KHULA is the absolute right of women. Courts are not considering traditional view of
conditions in practical. For courts it is enough that the parties could not remain within the
limits of Allah.
Secondly, satisfaction of court is not a condition rather it is in the best interest of women to
consult able mind for her future.
Essentials of KhuLa:
1. The demand of divorce shouLd originate from the woman.
2. A certain consideration is offered to the husband by the wife.
3. It completes on the acceptance of consideration by the
husband.
4. The proposal and acceptance need not to ne in any particular
form in Sunni law.
5. In Shia law certain forms are to be strictly followed and
witnesses are required.

LegaL effects of the khuLa:

1. One irrevocable divorce (talaq-i-bain) takes place.
2. Mahr
i. According to Imam Abu Hanifa, in absence of agreement,

woman's right to dower abolishes.

ii. According to Imam Muhammad and Imam Yousaf, woman
remains entitled to receive mahr.
3. Woman is bound to observe iddat if the marriage is
consummated.
4. Woman doesnt lose her rights of maintenance during iddat.
5. Share in inheritance is abolished for both the parties.
6. Children inherit from both mother and father.
7. Woman becomes free to get into a new marital relation.
8. A fresh nikah is needed if the man and woman wants to resume their relationship.
.khula is an absolute right... though in most of circumstances women have to seek the
assistance of court...but once she has demnded for khula it will be granted no matter husband is
agreed to it or not.if he is not and women still wants so she will be granted khula any way.and
consideration will be paid to husband via court no matter he accepts it or not...so khula is
absolute right of women in shriah ad general law..furthermore Khula is an Islamic right of
Muslim wife. She can take khula from her husband on many grounds. Some of these grounds are
discussed in the section 2 of West Pakistan dissolution of Marriages Act, 1939.Moreover there is
no right of appeal, right of review, right of revision and writ that lies once khula is granted by the
court.The procedure of khula is very simple in pakistan. The wife has to file a plaint in the family
court demanding khula. She has to leave haq mehr when she applies for that. Khula is usually
granted in 4-6 months in Pakistan when it proceeds ex-parte and in other circumstances it also do
not take much time.
Khula
ISLAMIC Shariah provides for Nikah in order to keep the society morally healthy, bring to an
end all that is evil and obscene, and let husband and wife live in peace and harmony. If a couple
fails to reap these benefits from a Nikah-based wedlock, viz. the matrimonial relations do not
remain pleasant and harmonious and in case that situation prevails, there arises the danger of
spoiling the very purpose of Nikah, then it is desirable to annul such a Nikah.
Since it is binding upon the husband to pay Mahr to his wife and provide all the basic needs to
her, he has the right to pronounce divorce. If a woman wants separation from her husband, she
will have to return her Mahr. In Islamic parlance, this right of a woman is called Khula. Khula
means to annul, to free, to rescind. Precisely, it is a typical form of breaking the marriage bond.

Scholars of Islamic jurisprudence have defined it differently, and at great length. The gist of all
this is that a mans pronouncing divorce after receiving money for the purpose from his wife is
called Khula.
The right to divorce rests with the husband. If the wife wants to seek divorce, the way is open for
her on the condition of returning her Mahr. If the husband is not ready to divorce her even on the
condition of getting the Mahr back, the woman can move the court and the court in turn would
secure divorce from her husband in lieu of the Mahr.
During the lifetime of Prophet Muhammad (peace be upon him) there arose some cases of Khula
which led the Islamic State of Madina to lay down its rules and procedure. The Holy Quran
says: ...Then if you fear that they would not be able to keep the limits ordained by Allah, then
there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul
(divorce). These are the limits ordained by Allah, so do not transgresses the limits ordained by
Allah, then such are the Zalimun (wrong-doers). (Quran, 2:229)
As divorce without any rhyme or reason is most detrimental, similarly seeking Khula without
any solid ground is most detestable in the eyes of Shariah. A tradition of the Noble Prophet
(peace be upon him) says: The woman who demands divorce from her husband without having
any ground, will be deprived of the fragrance of Heaven. (Bukhari)
However, if there is any reasonable ground, securing Khula is permissible and there is no hitch
about it. Another Hadith says: The wife of Thabit Bin Qais went to the Noble Prophet (peace be
upon him) and said to him: Messenger of Allah, I dislike Thabit the most. I do not level any
charge against his faith or morals; but I fear that living with him may plunge me into Kufr. The
Noble Prophet (peace be upon him) asked her whether she would return the garden which he
(Thabit) had given her as Mahr. To which she replied in the affirmative. Then he (the Prophet)
asked Thabit Bin Qais to get the garden back and divorce her. (Bukhari)
Another case of Khula relating to the same Thabit Bin Qais is reported thus: Thabit Bin Qais
beat his wife Jameelah. She (Jameelah) or, according to another report, her brother complained to
the Noble Prophet (peace be upon him) against him. He (the Prophet) sent for Thabit and told
him to take the Mahr back and divorce his wife. (Nasai)
A study of these traditions brings to light certain facts about Khula. One, if a woman dislikes her
husband, and as a result fears that the couple might not be able to keep within the bounds set by
Allah, opting for Khula is better.
Two, the woman will have to return the Mahr in order to secure divorce. And if the husband does
not want to divorce her even on the condition of taking the Mahr back, he will be compelled by
the court to accept the money and divorce her. Three, these traditions also indicate that the
amount of Mahr should be considered as the maximum for granting Khula. That is, a man should
accept the Mahr back from his wife and divorce her on demand. If a man demands more than the

amount of Mahr to grant Khula, it is undesirable. However, it is not illegal according to Ibn
Abbas, Ibn Umar and Uthman.
The divorce pronounced in case of Khula, in whatever words it is done, will be final and
irrevocable. That is, the man will have no right to revoke the divorce during the womans Iddah.
Had the man been given the right to revoke the divorce in case of Khula, the very purpose of
Khula would not have been served. Khula has been provided for to give the woman the right to
separation from her husband if she dislikes him; and for this kind of separation she returns her
Mahr. In spite of this, if a man were to have the right to revoke the divorce, it would mean the
woman was not given that right.
Like divorce, Khula also becomes effective without the intervention of the court. It can be
demanded and granted in the privacy of the man and wife or in the presence of some relatives
and friends. However, if the man is not willing to grant Khula, the case should be referred to a
court.
Unlike divorce, Khula can be demanded and granted even while the woman has not completed
her menstrual period.
A woman can herself demand Khula or her Wali (guardian) can do so on her behalf. However, if
the woman has not attained puberty, her Wali has no right to demand Khula on her behalf.
Case
Khurshid Bibi was married to Muhammad Amin, and her brother was married to his sister. Since
there were no offspring of the wedlock, Muhammad Amin took a second wife. Khurshid Bibi
then demanded a separate house and though he promised it to her, he failed to fulfill his promise.
She complained of maltreatment at his hands. Muhammad Sharif, her brother, took out warrants
under section 100, Criminal Procedure Code, and she left his house. The respondents father
convened two Panchayats, but efforts at reconciliation between the spouses failed.
Khurshid Bibi then brought a suit for dissolution of marriage with Muhammad Amin, and he
instituted a suit for restitution of conjugal rights. Her suit was dismissed, but her husbands suit
was decreed against her on January 21, 1960. Muhammad Amin visited her at her parents house
to realize costs awarded to him in his suit.
In Khushid Bibis second appeal, the Single Judge of the High Court believed that because her
brother was married to his sister, he could not afford to be inconsiderate towards her. Thus, he
felt that if the defendant could not provide a separate residence for her it was because he lacked
the means. He also felt that because she was not prepared to live with her husband because he
had remarried, but that this was not a grounds for khula divorce. Her appeal was dismissed in
limine. Finally, Khurshid Bibi initiated a Petition for Special Leave to Appeal, which brings us to
the case at hand in the Supreme Court.

Legal reasoning

1. Can the wife claim khula as a matter of right on restoring or agreeing to restore, to the
husband the dower or some other consideration given by the husband to her?

S.A. Mahmood, J., writes, Verse 2:229 of the Holy Quran implies that the wife has to pay
compensation to the husband in order to obtain dissolution of marriage by khula. This conclusion
clearly emerges from its words what she gives up to be free, or by what she ransomes herself
(p. 148). Thus, the wife can claim khula as long as she gives up her dower or pays compensation.
S.A. Mahmood, J., writes, the wife has to return the benefits of the marriage andhas to
refund no more than what she has received, for though Jamila was willing to give more than the
garden given to her by her husband, the Holy Prophet said: No, only the garden. (p. 148).
According to S.A. Mahmood, J., the wife is not required to give up more than her dower. S.A.
Rahman, J. has written, She expressed a willingness to give up the dower, but the husband said
he would not agree, even in that situation, to
grant her khula. According to the Hedaya, it is abominable for the husband to obtain more than
the dower, but it is legally permissible in the case of khula if he insists on getting restitution for
the gifts he provided during the marriage to the wife. (p. 121).

However, it is legally permissible (though not required) for the wife to give up more than she has
received essentially, the cost of expenditures the husband has made on the marriage (e.g. gifts)
if the husband requests it or if there is some sort of mutual agreement between husband and wife.
In such cases, since it is a contract between husband and wife, it is legal; though it is considered
abominable, the court cannot prevent such a situation.

2. On what grounds can the wife claim dissolution of marriage under khula?
As S.A. Rahman, J. writes, the wife is given the right to ask for khula in cases of extreme
incompatibility though the warning is conveyed by ahadith against too free exercise of this
privilege (p. 114) He also writes, The generally accepted account of Jamilas case as well as
that of Habiba makes it clear that the only ground on which the Prophet ordered the woman to be
releaed from the marriage bond, was her intense dislike of her husband. According to one text,
she clarified that she found him to be ugly and repulsive, and in another that she felt like spitting
at him. The Prophet being convinced that the spouses could not live together in conformity with
their conjugal obligations, ordered the husband to separate her (p. 118).

S.A. Mahmood, J. corroborates this view: Thus, khula was decreed by the Holy Prophet on the
ground that the wives having developed intense hatred for their husband, it had become
impossible for them to live with him and to perform their marital obligations (p. 138-139).
From the above three quotes, it is clear that a wife can claim dissolution under khula even for
reasons such as extreme incompatibility or intense dislike of the husband.

S.A. Mahmood, J. states that Khula is thus a right conferred on the wife The right is
not, however, an absolute right by which the wife can herself dissolve the marriage, but is a
controlled right. The success of her right depends upon the Qazis reaching the conclusion
that the spouses cannot live within the limits of God (p. 136). The wife can obtain khula
even due to personal dislike or aversion, or any other reason, as long as it is proved that the
spouses can no longer live together and fulfill their conjugal duties according to Islam.

3. Is the khula different from talaq?

S.A. Rahman, J. writes that, There are good reasons for the view that khula is separation and not
talaq, as the right of the husband to take back the wife after khula, does not exist, as it does in the
case of talaq-i-rajaI, and the period of Iddat is different in the two cases (p. 116).

This shows that khula is different from talaq.

S.A. Mahmood, J. concurs when he writes that Verse 2.229 of the Quran by making it not
lawful for the husband, where he pronounces a talaq to takeback anything from the wife and
permitting it where she seeks khul, indicates that talaq is in a category different from khula.
There is a clear difference between the two, for khula is the right of the wife, and talaq is the
right of the husband. A talaq is pronounced by the husband on his own, but khula under the verse
is sought by the wife, and is effected by the order of the Qazi for a consideration to be paid by
her. The nature and character of talaq and khula are different, though their effect may the same,
namely, dissolution of the marriage tieKhula is not the same thing as talaq and the two cannot
be equated (p. 136-137). Here, the judge explains that khula and talaq have different
characteristics. After khula , the husband no longer has the right to take back the wife as the
dissolution has been initiated by her. However, after a talaq has been pronounced, a husband still
has the right to take back the wife. Thus the two are different in a critical aspect.

The two are also different in the form they take; talaq is pronounced by the husband, but khula is
sought by the wife and put into force either by the husbands permission or the Qazi.

4. Is the consent of the husband required for the wife to obtain dissolution of marriage under
khula, or can the Qazi dissolve the marriage even if the husband does not agree with it?

S.A. Rahman, J. states: But where the husband disputes the right of the wife to obtain separation
by khula, it is obvious that some third party has to decide the matter and, consequently, the
dispute will have to be adjudicated upon by the QaziAny other interpretation of the Quranic
verse regarding khula would deprive it of all efficacy as a charter granted to the wife. It is
significant that according to the Quran, she can ransom herself or get her release and it is
plain that these words connote an independent right in her
(p. 117-118). Additionally, the person in authority, including the Qazi, can order separation
by khula even if the husband is not agreeable to that course (p. 121).

S.A. Mahmood, J. concurs when he argues that Verse 2.229 of the Quran virtually adds a
ground for dissolution of marriage, and thus authorizes the Qazi to dissolve the marriage in
appropriate cases, even without or against the will of the husband. He also writes that
dissolution is by the order of the Qazi and is not dependent on the consent of the husband or on
his pronouncing a talaq. There are no words in the verse indicating that the consent of or talaq by
the husband is necessary for khula (p. 137). Thus, the Qazi can dissolve a marriage at the
instance of the wife without the husband pronouncing a talaq. Therefore the authority vests in the
Qazi to
dissolve a marriage independent of the consent of the husband, whose refusal to pronounce a
talaq makes no difference to his powers and authority (p. 146).

As seen above, the judges concurred in their opinion and endorsed the view of Kaikaus, J. in
Mst. Balqis Fatima that under Muslim law, the wife is entitled to khula , as of right, if she
satisfies the court that otherwise she would be forced into a hateful union even if her husband
does not want a dissolution.

The dissolution does not rest on the consent of the husband, but depends on the order of the Qazi,
who has the power to order dissolution of marriage.

Since the dissolution can take effect without the husbands pronouncing the talaq, the Qazi has
the power to dissolve the marriage by khula also independent of the husbands consent and his
pronouncing a talaq.

In the current case, the judges concurred that it was clear that the relations between husband and
wife were embittered. He was in a financial position to provide an extra residence for her, but he
did not. He mistreated and abused her, and since she was not able to provide him with any
children, it is clear he did not care for her. The wife was not willing to return to the marital home
and fulfill any marital responsibilities. Thus, the Court was satisfied that there was no possibility
of them living together and fulfilling their conjugal duties and responsibilities within the limits
set by God. She was also willing to give up her dower in return for khula. Thus, she deserved a
dissolution of marriage by khula despite the husbands refusal.

Conclusion

(1) A wife can claim khula on agreeing to restore to the husband the dower or some other
consideration.

(2) The wife can claim dissolution of marriage under khula as long as there is personal aversion
or dislike, and if the Qazi or Court finds that the husband and wife cannot live together in amity
and fulfill the limits set by God.

(3) Khula is separate from talaq and is the right of a woman to obtain dissolution of marriage.

(4) The consent of the husband is not required for the wife to obtain dissolution under khula, if
the Qazi finds they cannot live together in harmony and if the wife is willing to provide
compensation in return.
Scope
.
ScopeWife had right to seek dissolution of marriage on the ground of Khula in
extreme circumstancesSuch right is not absolute and no blanket authority is given to wife
for automatically denouncing marital bondsRight of Khula is reasonably controlled and
is dependant upon scrutiny by court competent to decide the matter after properly

satisfying itself about existence of reasonable circumstances on which separation is being

claimed, so as to terminate sacred relationship of the spousesFor allowing wife, authority
to exercise the right of Khula there must exist reasonable proof sufficient for the
satisfaction of Qazi (court) showing incompatibility of temperament including total lack of
sympathy between husband and wife resulting in resistance to mutual adoptionIntense
hatred, serious discord, extreme disliking, strong malice explicitly indicating impossibility
of future harmonious relationship between the parties in accordance with limits prescribed
by god must existExercise of right of khula is subject to restoration of partial or total
benefits received by the wife in connection with marriage. PLD 2004 Pesh. 15
Case laws
P L D 1971 Supreme Court 192

Present : Hamoodur Rahman, C. J., Sajjad Ahmad, M. R. Khan and Waheeduddin Ahmad,
ii

MUHAMMAD SIDDIQ-Appellant
versus
Mst. GHAFURAN BIBI-Respondent

Civil Appeal No. 29 of 1970, decided on 11th November 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore,
dated the 13th December 1968, in R. S. A. No. 455 of 1967).

(a) Dissolution of Muslim Marriages Act (VIII of 1939), S. 2- Muhammadan Law-"Khula'

"-Suit for dissolution of marriage on ground of habitual cruelty, non-maintenance and
misappropriation of property and ornaments-Findings against plaintiff and suit dismissedFindings not assailed before High Court in second appeal but plaintiff at appellate stage pleading
for dissolution on ground of "khula` " and High Court acceding to plea granting dissolution of
marriage by way of "khula` "-Held : Procedure adopted by High Court "highly improper"-

Defendant In suit had no opportunity of contesting issue-Plaintiff directed to amend plaint and
case remanded for determination of issue of "khula` " after taking evidence if necessary.

A suit for dissolution on ground of habitual cruelty, nonmaintenance and misappropriation of

property and ornaments was filed by a muslim married woman. The suit was decreed by the trial
Court but on appeal the decision was reversed. In the second appeal before the High Court the
plaintiff did not assail the findings of the first appellate Court with regard to cruelty, nonmaintenance etc. but pleaded that the relation between the spouses had become strained and
therefore, a decree for dissolution be granted on ground of "khula` ". The High Court acceded to
the request and granted the decree prayed for. In appeal before the Supreme Court the husband's
plea was that the question of "khula"' was not specifically pleaded in the plaint and, therefore, the
High Court was not justified in granting decree on that ground suo motu without the defendant
having had any opportunity to traverse the plea.

Held: It is no doubt correct that the Supreme Court did, in Khurshid Bibi's case, lay down that
the Courts do possess the power to grant a khula` divorce where the husband is unwilling to
dissolve the marriage tie even though it is no longer possible for the spouses to live within the
limits prescribed by Allah but this Court did not say that this could be done without observing
the fundamental norms of judicial procedure. It is a basic principle of all judicial process that the
defendant should have an opportunity of rebutting the case sought to be made out against him. A
decree cannot be passed against anyone who has not been given this opportunity, particularly,
where the question is one of fact. The appellant, who was the defendant in the suit, was,
certainly, entitled to an opportunity to produce rebutting evidence if it was sought even at this
late stage to convert the suit into a suit for khula` divorce. The procedure adopted by the High
Court was, highly improper, for, it denied the defendant in the suit any opportunity of contesting
this issue.

The Supreme Court allowed the appeal, set aside the order of the High Court and remanded the
case back to it to allow the parties to amend their pleadings, raising a specific issue with regard
to this question, namely, as to whether the plaintiff is entitled to divorce by way of "khula"', and
to determine the same by taking evidence, if necessary.

Khurshid Bibi v. Muhammad Amin P L D 1967 S C 97 ; Bilqis Fatima v. Najmul Ikram P L D

1959 Lah. 566 ; Mst. Umatul Hafeez v. Talib Hussain A I R 1945 Lah. 56 ; Muhammad Ali v.
Ghulam Fatima A I R 1935 Lah. 902 and Majida Khatoon Bibi v. Paghalu Muhammad P L 1)
1963 Dacca 583 ref.

(b) Constitution of Pakistan (1962),Art. 58(3) read with Supreme Court Rules, 1956, O. XIII,
r. 1 & O. XLIll-Special leave to appeal granted on condition that petitioner/appellant do defray
expenses of respondent in defending appeal regardless of its fate-Security of Rs. 1,000 demanded
from petitioner/appellant.

(c) Suit-Defendant should have opportunity of rebutting case sought to be made out-Decree
cannot be granted against party not afforded such opportunity.

Ch. Muhammad Hussain, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocateon-Record for Appellant.

Ali Ahmad Awan, Advocate Supreme Court instructed by Sh. Masood Akhtar, Advocate-onRecord for Respondent.

Dates of hearing : 10th and 11th November 1970.

JUDGMENT

HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of a judgment of a

learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Seat, in a second
appeal.

This appeal arose out of a suit for dissolution of marriage on the ground of habitual cruelty, nonmaintenance for more than two years and misappropriation of her property in the form of
ornaments, etc. This suit was decreed by the trial Court, but on appeal the Additional District
Judge, Lyallpur, reversed the decision of the trial Court and dismissed the suit for dissolution of
marriage.

In second appeal before the High Court the learned counsel for the present respondent conceded
that he was not in a position to assail the findings of fact with regard to cruelty and nonmaintenance, but he maintained that the relations between the spouses had become so highly
strained that it was impossible for them any longer to live together in amity and goodwill. In the
circumstances, it was prayed that the High Court should, applying the principles laid down by
this Court in the case of Khurshid Bibi v. Mohd. Amin (P L D 1967 S C 97and by a Full Bench
of the High Court itself in the case of Bilqis Fatima v. Najmul 1kram (P L D 1959 Lah.566grant a
decree for dissolution of marriage on the basis of "Khula' ", particularly, since the respondent
was prepared to purchase her liberty by paying such compensation as may be determined by the
Court.

As against this, the learned counsel for the present appellant argued that the High Court could not
grant a decree for "Khula' ", as there was no evidence on the record to show that the living
together of the spouses had become impossible or that they will not be able to observe the limits
of Allah: It was further contended that a wife, who is unable to convince the Court that she
cannot go back to the husband and live with him in amity and goodwill, is not entitled to
separation even by way of "Khula' ". In support of this contention reliance was placed on several
decisions in the cases of Mst. Umatul Hafeez v. Talib Hussain (A I R 1945 Lah. 56), Muhammad
Ali v. Ghulam Fatima (A. I R.1935 Lah.-902) and Majida Khatoon Bibi v. Paghalu Muhammad
(P L D 1963 Dacca 583

The High Court, however, took the view that even if the respondent's appeal failed, the husband
would not be in a position to take the wife back forcibly, with the result that he would be under
no obligation to maintain her and the wife will remain in a "Mullaqa". In the circumstances, the
High Court felt justified in allowing the appeal and granting a decree for dissolution of marriage
by way of "Khula' " conditional `on payment of compensation. The judgment of the first
appellate Court was, accordingly, set aside and the case was remanded to the trial Court for
determining the amount of compensation payable to the appellant.

Leave was granted in this case to consider whether the High Court could decree the suit on a
ground not raised in the plaint.

Learned counsel for the appellant has strenuously contended that the learned Judge could not suo
motu, in the absence of any plea to that effect, grant a decree on a cause of action which was not
pleaded in the plaint and which the defendant in the suit had no opportunity to traverse. The best,
it is urged, that the High Court could do was to allow the respondent to amend her plaint and ask
for dissolution of her marriage with the appellant by way of "Khula' ". It is further contended that
the decision of this Court in the case of Mst. Khurshid Bibi v. Babu Muhammad Amin did not, at
any place, lay down that the mere wish of the wife to dissolve the marriage tie was sufficient to
entitle her to a divorce by way of "Khula` ". This right of "Khula' " is not an absolute right by
which the wife can herself dissolve the Marriage.
It is a right which is dependent upon the "person in authority", which term includes the Kazi,
ordering separation after being satisfied that unless this is done the spouses will not be able to
live within the limits of Allah.

The view taken in the case of Mst. Bilqis Fatima v. Najmul Ikram Qureshi is to the same
effect.

There is substance in the contention, for, even in Khurshid Bibi's case this Court did point out as
follows:-

"In the present case, on the facts, it has been found that there is no possibility left, of the parties
residing together in amity and goodwill. There has been litigation between them. The wife had to
be brought away from the husband's house, on a warrant issued under section 100, Criminal
Procedure Code. She may have taken an intense dislike to her husband, after he contracted his
second marriage, but ever since that time, she has consistently declined to share the connubial
bed with him. In the circumstances, it would be idle to have recourse to the formality of
appointing hakams to attempt a reconciliation between them, considering that a panchayat,
convened by the defendant's father, also failed, in this respect. I would, therefore, hold that the
plaintiff is entitled to separation from her husband, by "Khula' ", in the circumstances of the
instant case. It has further to be pointed out that in the plaint itself in that case there was an
alternative prayer for dissolution of marriage by way of "Khula' ". In the present case no such

relief has been sought in the plaint. Learned counsel appearing for the respondent has, however,
relied on the decision of a learned Single Judge of the Dacca High Court in the case of Majida
Khatoon Bibi, but there is nothing in this decision to support the contention of the respondent
that the course adopted by the High Court was proper. That was a case where the suit for
dissolution of marriage on the ground of non-maintenance had failed in the first appellate Court
on the ground that a wife who withhold herself from her husband without any justification was
not entitled to maintenance. The Dacca High Court too hold in that case that non-maintenance
simpliciter was not sufficient to entitle the wife to dissolution of the marriage tie. The decisions
in the cases of Mst. Umatul Hafiz and Mahmud Ali also deal with the question of nonmaintenance of wife as a ground for divorce. They have no relevance on the question of "Khula'
" divorce.

It is no doubt correct that this Court, did, in Khurshid Bibi's case, lay down that the Courts do
possess the power to grant a "Khula" divorce where the husband is unwilling to dissolve the
marriage tie even though it is no longer possible for the spouses to live within the limits
prescribed by Allah but this Court did not say that this could be done without observing the
fundamental norms of judicial procedure. It is a basic principle of all judicial process that the
defendant should have an opportunity of rebutting the case sought to be made out against him. A
decree cannot be passed against anyone who has not been given this opportunity, particularly,
where the question is one of fact.

Learned counsel has not been able to draw our attention to any material on the record which
would have established the condition upon which alone the Court or the Kazi could interfere and
compel an unwilling husband to dissolve the marriage tie at the request of the wife. The learned
Judge was not, therefore, in our opinion, right in granting a divorce by way of "Khula` " after the
suit for dissolution of marriage on the ground of cruelty and non-maintenance had failed upon
the findings of fact accepted by him. The present appellant, who was the defendant in the suit,
was, certainly, entitled to an opportunity to produce rebutting evidence if it was sought even at
this late stage to convert the suit into a suit for "Khula` " divorce. The procedure adopted by the
High Court was, in our view, highly improper, for, it denied the defendant d in the suit any
opportunity of contesting this issue. We would, therefore, allow this appeal, set aside the order of
the High Court and remand the case back to it to allow the parties to amend their pleadings,
raising a specific issue with regard to this question, namely, as to whether the plaintiff is entitled
to divorce by way of "Khula` ", and to determine the same by taking evidence, if necessary.

Having regard to the time that has already elapsed since the suit was originally instituted in 1964,
we would suggest that the High Court should itself take evidence on this issue and if it comes to

the conclusion that the issue has been established by the plaintiff. then to also determine the compensation payable to the husband. We also hope that the High Court will give this matter some
priority and decide it as expeditiously as possible.

When leave was granted in this case the appellant had undertaken to defray the expenses of the
respondent in defending the appeal regardless of the ultimate decision. In this view of the matter
it had been ordered that instead of furnishing security he should deposit Rs. 1,000 in this Court to
be made available to the respondent for payment of fees to her own counsel. In the circumstances
there will be no further order as to the costs of this appeal, but out of the amount deposited by the
appellant under the directions of the Court the taxed costs of the respondent will be paid to the
extent o Rs. 1,000 only. The balance, if any left over, will be returned to the appellant.
K. B. A.Appeal accepted.
Case law 2
1985 M L D 225

[Karachi ]

Before Muhammad Zahoorul Haq, J

ALTAFUR REHMAN--Petitioner
versus
Mst. NUSRAT RASHID. and 3 others--Respondents

Constitutional Petition No. S-177 of 1983, heard on 16th May, 1984.

(a) Muslim Family Laws Ordinance (VIII of 1961)--

---S. 8--Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(viii)-Khula', principle of-Dissolution of marriage--Mental .torture to wife established--Parties could not live within limits

of God as wife had developed internal disliking to husband--Court, _held, rightly dissolved
marriage on 'principle of Khula.

(b) Dissolution of Muslim Marriages Act (VIII of 1939)---S. 2(viii)--Expression 'making life miserable'--Question of fact-Expression, held, vague-Question of making life-miserable being question of fact, could be mentioned, as such without
further elaboration.

(c) Muslim Family Laws Ordinance (VIII of 1961)--

---S. 8--Khula'--Justification for granting Khula'--Parties living separately for about three years
filing suits against each other; levelling serious allegations against each other, police having been
involved 'in their matter; and efforts for reconciliation having badly failed--Sufficient
justification in granting Khula, held, existed.

P L D 1967 S C 97 rel.

(d) Provisional Constitution Order (1 of 1981)--

---Art. 9--Constitutional petition--Order as to costs--Attitude of petitioner--Attitude of petitioner

being constantly for reconciliation-Court although dismissed his petition yet did not pass order as
to costs against him.-[Costs].

Abdul Fahim for Petitioner.

A.R. Mirza for Respondents.

Dates of hearing: 15th and 16th May, 1984

JUDGMENT

This Constitutional petition directed against the judgment and decree, dated 5-12-1983 passed by
the 29th Civil Judge Second Class and Family Judge, Karachi whereby the marriage of the
respondent Mst. Nusrat Rashid was dissolved on the basis of Khula'.

2. The admitted facts are that the petitioner had married respondent in 1971-72 and they had
lived for about 10 years as husband and wife but differences developed and in 1981 according to
the respondent she was turned out of the house by the petitioner on 19-5-1981 and according to
the petitioner he took her to her parents on that day without any quarrel. It is however, an
admitted position that the parties have been living separately since that date and both the parties
have claimed that they had tried to bring reconciliation but reconciliation has not been possible
between them. The respondent filed suit for dissolution of marriage in 1982 and that the
petitioner filed suit for restitution of conjugal rights in the same year and both suits were
consolidated and tried together. The dissolution of marriage had been claimed on the basis that
the petitioner had concealed the factum of his previous marriage from the respondent and after
3/4 years of marriage she came to know that he was a married man and he had two children arid
the respondent had confronted the petitioner with-that situation who had forbidden her from
disclosing about that to her parents but she disclosed the same and this disclosure enraged the
petitioner who started taking revenge, he used to abuse and physically torturer the respondent
over triffle matters and made life of the plaintiff miserable due to cruelty of his conduct and that
finally on 19-5-1981 the defendant had mercilessly beaten the plaintiff and thrown her out of his
house in her three clothes. It was also stated by the respondent in the plaint that she had
developed deep sense of hatred against the defendant and it was not possible for her to live with
him within the limits prescribed by Al-mighty Allah and she was ready to forego the dower. The
petitioner had denied all these allegations in his written statement and had stated that the
respondent was acting under the influence of her sister Mst. Nargis Rasheed. It was also stated in
the written statement that nothing had been concealed from the respondent in respect of early
marriage of the petitioner and his two children and that on 11-6-1981 the respondent had asked
for divorce at the instigation of her sister. It was further averred that the petitioner made efforts
for reconciliation but he was forced by the relations of the respondent to divorce her and he was
even pressurised by the police to divorce the respondent. The petitioner had also taken up
position that the respondent was practising illegally as M.B.B.S. Lady doctor and he had,
therefore, asked her to stop doing that and that the defendant was willing to take her back as he
love her. After framing all the issues the Civil Judge examined the parties. Nusrat Rasheed and

Mst. Nargis Rasheed her sister, deposed for the plaintiff /respondent. Nusrat Rasheed gave a
huge number of incidents of torture and she stated that she was kept like a prisoner, she was not
allowed to meet her relations, she was made to serve as maid-servant and she was not taken for
shopping and she was once beaten and several times abused. However, she did not state that on
19-5-1981 she had been beaten by the petitioner. She also stated that she had developed hate
against the petitioner. Her statement was supported by Miss Nargis Rasheed. Both these women
were cross-examined at great length. The petitioner was able to get admission from Mst. Nusrat
Rasheed that two children of the petitioner had come to live in his house after 2/3 years of the
marriage. But otherwise the statements of these two witnesses in respect of mental torture and
beating etc. remained unshaken. Mst. Nusrat Rasheed denied that she was acting under the
instigation of Miss Nargis and Nargis denied that she was instigating Nusrat to get a divorce.

3. The Civil Judge came to the conclusion that mental torture had been established. He also came
to the conclusion that the parties cannot live within the limits of God as respondent had
developed internal A disliking to the petitioner.

4. Mr. Fahim, counsel for the petitioner has argued that the details of torture had not been given
by the respondent in her plaint and the only detail of 19-5-1981 which had been given was not
stated on oath as a fact in her statement. He, therefore, argued that it was completely different
case which had been pleaded by the respondent whereas the evidence had been in respect of
different other things. Counsel relied upon section 7 of the Family Court, 1964 where facts are
directed to be mentioned in the plaint. He also relied upon rule 2 of Order VI, C.P.C. which
requires mention of facts in the plaint.

5. Mr. A.R. Mirza on the other hand relied upon section 2(viii) of the dissolution of~ Muslim
Marriage Act where it is stated that "where the husband treats her wife 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 woman of evil repute or leads an infamous life etc. are the incidents of
cruelty, mentioned in the act itself.

He submitted that since these are requirements of law, therefore, no further mention of the facts
was necessary in this regard. However, I find that in the plaint there was a mention about the
abases having been given and beating having been given. It is correct that the incidents of 19-51981 has not been proved by the respondent but she did make a statement that she was several
time abused and she was not cross-examined on that aspect. She also made a statement that her
sister visited her house. In any case making the life miserable is a vague expression and the law
has allowed making of that allegation as a question of fact in a suit for dissolution of marriage
and, therefore, the same could be mentioned as such without further elaboration. Mr. Fahim is of
course right when he submitted that the facts as such should have been mentioned and not the
legal result of facts but in view of correspondence that has passed between the parties in the form
of letters Exhs.P.2 to P.6. It is apparent that these various allegations which Mst. Nusrat Rasheed
went to prove had been made in the notices sent on behalf of Mst. Nusrat Rasheed before filing
of this suit' of dissolution of marriage and consequently the petitioner had notice of those
allegations and if he wanted he could meet the same. However, if we take a technical view of it
and even exclude those portions of the evidence which do nut completely support the pleadings
in the various paragraph of the -plaint still the fact remained that abuses have been proved by the
respondent and to that extent there is no inconsistency between the pleadings and the plaint.
Since I am not dealing here with the evidence in the appellate capacity and I am only concerned
with examining whether there was some justification on record for the finding of the Civil Judge,
therefore, I am of the view that there is substance in respect of proof' of finding of abuses and to
that extent the allegations have been substantiated.

6. What has worried me however, is that the basis in the plaint was that it was the disclosure
made by the respondent to her parents about previous marriage of the petitioner which enraged
the petitioner and cause of trouble started but that has been proved to be wrong as she admitted
in her cross-examination that the children had started living with them after 3 years of marriage
which would be 1974 and, therefore, there was a subsistence of reasonable good relationship of
married life for about 5 or 6 years. This has not been explained by the respondent in any manner
and this does reflect upon her evidence in respect of misconduct of the husband. However, as I
said above, I am not sitting here in an any manner and this does and, therefore, I cannot declare
the impugned judgment as illegal merely because I am taking a different view of a part of the
evidence from that of the Civil Judge.

More important fact is that there was a reasonable justification for granting Khula in this. It is an
admitted position that the parties have been separately since 1981, that they have filed suits
against each other but they had are staying from each other but hey had levelled serious
allegation against each other. The petitioner has been instrumental in getting the medical
registration of the respondent cancelled which she or someone else on her behalf and obtained by

fraudulent representation. This must have been possible for a good deal of dispute between two
of them. Even the police has been involved in this matter as the petitioner has himself stated in
his written statement that the police had called him et the police station but eventually the matter
was patched up. It is an admitted position that on 6-1i-1981 Mst. Nusrat Rasheed had requested
the petitioner to pronounce divorce upon her and it is, therefore, clear that in June, 1981 the
parties had reached almost on the point of separation. Various efforts made by the petitioner
which appear to be quite serious efforts' at reconciliation, have not turned fruitful and the
respondent and her' relation have always insisted in having the marriage dissolved. In these
circumstances I am of the view that the Civil Judge was justified in' granting Khula' to Mst.
Nusrat Rasheed. In this respect attention is invited to P L D 1967 S C 97:

In Sayyeeda Khanum's case, the verse bearing on the right of Khula', was not noticed, though
the Hadith in respect of Jamila, wife of Sabet-bin-Qais was discussed. The opinion was
expressed, in that judgment that the decision of the Prophet in that case was not to be regarded as
a decree, awarded by him in the capacity of a Judge or as the Head of the State of Islam. It was
thought that, as the husband was agreeable to the separation, on the delivery back to him, of his
garden, this was a Separation by mutual consent, and it was in consequence of this that the
Prophet gave his direction. It would be more consistent, in my humble opinion, with the letter
and spirit of the Quran which places the husband and the wife on and equal footing, in respect of
rights of one against the other, to construe this incidents a meaning that the person in authority,
including the Qazi, can order separation by Khula even if the husband is not agreeable to that
cause. Of course the Quranic conditions must be satisfied that it is no longer possible for the
husband the wife to live togetherin harmony and in conformity with theirobligations.

The result is that this petition is dismissed but I will not pass any order as to costs because
according to me attitude of the petitioner has been constantly for reconciliation.

H.B.T.
Petition dismissed.
Case law 3
is case main 3 cheezen hain khula aur maintainance bhi
1987 M L D 2992
[Karachi]

Before Mamoon Kazi,

Syed ZAMIN HUSSAIN ABIDI--Petitioner

versus
Mst. MUBARAK BANG and others--Respondents

Constitutional Petition No.a-139 of 1986, decided on 9th December, 1986.

Dissolution of Muslim Marriages Act (VIII of 1939)--

---S.2(ii) (viii)--Constitution of Pakistan (1973), Art.. 199--Dissolution of marriage-Constitutional jurisdiction--Questions of fact--Assessment of evidence being function of Family
Court in family cases, High Court in exercise of constitutional jurisdiction, held, could not enter
into realm of facts.

K . M . Nadeem for Petitioner.

Imran Ahmed for Respondents.

ORDER

The learned Family Court has decreed the suit of the respondent No.1 for dissolution of marriage
on three grounds, viz. Khula, non-maintenance of the respondent No.1 by the petitioner and
cruelty and maltreatment of the respondent No.1. The contention of Mr. K. M. Nadeem, learned
counsel for the petitioner, is that the impugned Judgment is not based on sufficient evidence as
the respondent No.1 had failed to establish any one of the three grounds. In regard to Khula, the
contention of Mr. Nadeem is that the same cannot be granted without return of the benefits which
she has received from the husband and since no such benefits were returned to the petitioner, the
order of the learned Family Court suffered from infirmity.

2. The argument of Mr. Nadeem would have been valid if the suit has not been decreed on two
other grounds, since besides Khula, the dissolution of marriage was sought on two other grounds
viz. , non-maintenance and cruelty. In this respect, the contention of Mr. Nadeem is that the
evidence adduced by the respondent No.1 wasnot sufficient to establish the said grounds.
However, the argumentis unacceptable as assessment of evidence was the function of the trial
Court and this Court in the exercise of constitutional jurisdiction cannot enter into the realm of
facts. Apart from this no other grounds has been pleaded. I, therefore, do not find force in this
petition and dismiss the same in limine.
H.B.T./ Z-31/KPetition dismissed.
Case law 4
P L D 2012 Lahore 98
Before Asad Munir, J

SADIA SULTAN---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE HAFIZABAD and 2 others--Respondents

Writ Petition No.4075 of 2009, decided on 9th September, 2011.

West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 5, 9(1)(b) & 10(4)---Dissolution of Muslim Marriages Act (VIII of 1939), S.2--Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on

grounds of wife having developed hatred towards husband, his cruel treatment, his failure to
perform marital obligations, she having been deserted and contracting of second marriage by him
secretly without her permission or Arbitration Council---Failure of pre-trial conciliation efforts
between spouses and passing of decree by Family Court on ground of Khula' subject to return of
dower, if any, received by wife---Dismissal of wife's appeal by Appellate Court---Validity---Wife
could seek dissolution of her marriage on any one or more grounds enumerated in S.2 of
Dissolution of Muslim Marriages Act, 1939---Wife would lose her dower if she sought
dissolution of marriage on sole ground of Khula', but not when she raised other grounds in
support thereof unless she failed to prove such other grounds---Wife's entitlement to dower
would remain unaffected and intact, if she proved other grounds in addition to Khula'---Petitioner
(wife) had not sought decree on the sole ground of Khula'---Family Court had not decided' such
other grounds raised by petitioner in support of her claim---Where wife had taken other gourds in
addition to Khula' for seeking such decree, then order under proviso to S.10(4) of West Pakistan
Family Courts Act, 1964 could not be passed to deny the wife benefit of dower by its return or
relinquishment---High Court set aside impugned judgments and decrees and remanded case to
Family Court to frame additional issues, if not framed earlier, and decide the suit on the basis of
evidence to be produced by parties.

Habib-ur-Rehman v. Additional District Judge, Lahore and others 1984 SCMR 1430; Khurshid
Bibi v. Muhammad Amin PLD 1967 SC 97; Mukhtar Ahmad v. Ansa Naheed and 2 others PLD
2002 SC 273 and Mst. Saima Irum and 3 others v. Tariq Javed and another 2006 MLD 83 rel.

Muhammad Kazim Khan for Petitioner.

Muhammad Asif Ismail for Respondent No.3.
JUDGMENT

ASAD MUNIR, J.---The relevant facts as emerge from the record are that the marriage between
the petitioner, Mst. Sadia Sultan and respondent No.3, Major Nadeem Khan, was contracted on
28-2-2003 in consideration of the haq mahr of Rs.100,000. However, the marriage ran into
trouble after respondent No.3 got married to Mst. Shagufta Ghazi on 23-7-2004 without
obtaining any permission from the petitioner or the concerned Arbitration Council. In order to
reassure the petitioner respondent No.3 executed iqrarnama dated 26-8-2004 whereby he

enhanced the dower amount from Rs.100,000 to Rs.2,000,000 and also agreed to divorce his
second wife. The amount of dower was further enhanced to Rs.2,500,000 vide another iqrarnama
dated 10-9-2005, executed by respondent No.3, wherein also an assurance was given by
respondent No.3 that he would divorce his second wife. However, respondent No.3 did not
divorce his second wife with the result that the relations between the two. became so strained
that since May, 20.05 the couple stopped living together. On 17-2-2007, the petitioner filed a suit
for recovery of dower of Rs.2,500,000 which was allowed vide Judge Family Court, Hafizabads
judgment and decree dated 31-10-2007, affirmed by Additional District Judge, Hafizabad's
judgment and decree , dated 26-3-2008. The said judgments/decrees were assailed by respondent
No. 3 through Writ Petition No. 5366 of 2008 which has been dismissed by'this Courts judgment
of even date.

2. The instant writ petition arises out of the petitioner's suit for dissolution of her marriage with
respondent No.3, wherein the petitioner alleged that respondent No.3 was cruel to her and used
to subject her to physical and mental torture, had deserted her since May 2005 and had also
contracted a second marriage secretly without the permission of the petitioner or the Arbitration
Council. It was also averred in the plaint that the petitioner had developed an aversion towards
respondent No.1 wherefor she was entitled to a decree for dissolution of marriage. Record shows
that on 17-11-2008, when the case was fixed before the Judge Family Court, Hafizabad, for
reconciliation between the spouses, the petitioner made a statement to the effect that she had
intense hatred towards respondent No.3, could not live with him and wanted divorce by way of
Khula'. Thereafter, vide order dated 17-11-2008, the Judge Family Court decreed the suit of the
petitioner under the proviso to section 10(4) of the West Pakistan Family Courts Act, 1964,
subject to the return of consideration, if any, received by the petitioner from respondent No.3.
Against the order dated 17-11-2008, the petitioner filed an appeal wherein it was pleaded by the
petitioner that she had never sought dissolution of marriage on the ground of Khula' but had
sought it on other grounds and that the statement attributed to her was written not before but after
she had affixed her signatures on the order sheet. However, the aforesaid pleas were not accepted
by the learned Additional District Judge, Hafizabad, who dismissed the petitioner's appeal vide
his judgment and decree dated 30-1-2009.

3. The legality of the judgments/decrees of the learned courts below have been assailed by the
petitioner whose learned counsel has referred to the petitioner's plaint to contend that she sought
the dissolution of marriage on three separate grounds only i.e. respondent No.3's cfueity, his
second marriage without the permission of the Arbitration Council and his failure to perform his

marital obligations since May, 2005. It is further contended that the petitioner never agreed to
restore or relinquish the dower but the marriage has been dissolved subject to the return of
dower. It is also contended by the learned counsel that when a number of grounds including
Khula' have been urged by a wife for the dissolution of her marriage, the Family Court cannot
dissolve the marriage on the ground of Khula' unless the other grounds have also been addressed
and adjudicated upon otherwise the result is injustice as in every case of dissolution of marriage
the wife must lose her haqmahr either by restoring it or by foregoing it. On the other hand, the
learned counsel for the respondent has referred to the proviso of section 10(4) of the Act to
contend that dissolution of marriage on the ground of Khula' has to be made subject to the
condition of return of dower if it has been paid or its relinquishment if it is yet to be-paid.

4. I have . heard the learned counsel for the parties who haveadvanced. arguments for and against
the legality of the impugned judgments whereby the marriage has been dissolved on the ground
of Khula' subject to the restoration of dower.

5. A wife can seek dissolution of her marriage on any one or more of the grounds mentioned in
section 2 of the Dissolution of Muslim Marriages . Act, 1939. These grounds include husband's
cruelty, his desertion of the wife for three years, his taking an additional wife in contravention of.
the provisions of the Muslim Family Laws Ordinance, 1961 and any other ground including.
Khula' recognized under the Islamic Law. A wife would lose her dower only if she seeks
dissolution of marriage on the sole ground of Khula' but not when she urges other grounds in
support of her case unless the other grounds are mot proved. Her entitlement to receive dower or
its retention would remain unaffected and intact if she is able to prove other grounds like cruelty
of the husband. This view 4is fortified by Habib-ur-Rehman v. Additional District Judge, Lahore
and others (1984 SCMR 1430), where a wife sought dissolution of her marriage -on the ground
of cruelty of the husband as well as on account of the hatred she had developed towards him.
Another suit for recovery of dower was also filed by her against the husband. Both the suits were
decreed in favour of the wife whereupon the husband filed a writ petition which was also
dismissed. The matter went up to the honourable Supreme Court where it was argued that the
marriage having been. dissolved on the ground of Khula', the wife was not entitled to receive any
dower in view of the rule laid down in Khurshid Bibi v. Muhammad Amin (PLD 1967 Supreme
Court 97). Rejecting the argument, the Honourable Supreme Court observed as under: --

"But the ruling in the cited case cannot be invoked in the present case because here the decree of
dissolution had been passed also on the ground of cruelty, in which case the wife is not deprived
of her right to the dower amount. If the petitioner could not resist the wife's suit for recovery of
the dower amount, had the decree of dissolution been passed only on the ground of cruelty, it is
hardly logical that he could resist it merely because the wife had also succeeded on another
ground, that is, of Khula'. No case-law has been cited to support that where the dissolution is
granted on grounds including Khula', the wife becomes disentitled to recover the dower money".

6. The aforesaid view was followed in Mukhtar Ahmad v. Ansa Naheed and 2 others (PLD 2002
Supreme Court 273), wherein the Hon'ble Supreme Court observed as under:

"It is an admitted fact that her marriage with the appellant was dissolved on various grounds,
including Khula'. Opce the marriage is dissolved on other grounds also the wife would be
entitled to recover the amount of dower and dowry. If the marriage is dissolved solely on the
ground of Khula' the situation, would be different and it would be examined keeping in view the
offer she made for getting marriage dissolved on Khula'. A woman married under Muslim Law is
entitled to obtain a decree for the dissolution of her marriage on anyone or more of the grounds
available under the law. Each ground is separate and enough for dissolution. If marriage is
dissolved on other grounds also it means that the result would have been the same irrespective of
the fact that the plea of Khula' was raised or not. Legal rights cannot be curtailed by implication."

7. Undoubtedly, the petitioner has not sought the dissolution of her marriage on the sole ground
of having developed aversion towards respondent No.3 but has also alleged respondent No. 3's
second marriage without permission of the Arbitration Council, his failure to perform his marital
obligations and his cruel treatment of the petitioner, which, if proved, are recognized as valid and
separate grounds for the dissolution of marriage under clauses (ii-A), (v) and (viii) of section 2 of
the Dissolution of Muslim Marriages Act,1939. None of these grounds have been adjudicated
upon by the learned Family Judge who, on failure E of pre-trial reconciliation between the
spouses, has vide order dated 17-11-2008 purportedly acted under the proviso to section 10(4) of
the Family Courts Act, 1964, to dissolve the marriage subject to the restoration of dower to the

husband. However, while passing the aforesaid order, the learned Family Judge was obviously
oblivious of the proviso to section 9(lb) of the Family Courts Act, 1964, which limits the scope
of the proviso to section 10(4) of the Act in the following manner: --

"Provided that the proviso to subsection (4) of section 10 shall apply where the decree for
dissolution of marriage is to be passed on the ground of Khula' . "

8. In view of the proviso to section 9(lb) of the Family Courts Act, 1964, it follows that the
proviso to section 10(4) can be enforced or acted upon only when Khula' is the only ground
taken for the dissolution of marriage. However, if grounds in addition to Khula' have been taken,
an order under the proviso to section' 10(4) of the Act cannot be passed C to deny the wife the
benefit of haqmahr by its return or by its relinquishment. In such a case, the other grounds
including second marriage without permission of the Arbitration Council, desertion of the wife
by the husband and his cruelty cannot be brushed aside but need to be adjudicated upon by the
Family Court in the light of the evidenceproduced by the parties in order to determine the wife's
entitlement as to Haq Mahr. A somewhat similar situation arose in Mst. Saima Irum and 3 others
v. Tariq Javed and another (2006 MLD 83 (Peshawar) wherein a Full Bench of the honourable
Peshawar High Court observed as under:--

"Therefore, in our view, the word "Khula'" should be construed as subject to the presumption that
the legislature does not intend, by its general language to subvert the established principles of
Shariah on the subject and has left it for the Family Courts to decide whether to dissolve the
marriage between the spouses on the ground of Khula' or not. If from the plaint submitted by the
wife, the only prayer of the wife is to dissolve her marriage on the ground of Khula', then the
Family Court under added provisos to sections 9 and 10 of the Family Courts Act, 1964. could
dissolve the marriage between them on the ground of Khula' and could also order for the
restoration of the haqmehr received by the wife in consideration of marriage but if the claim of
the wife is based on other grounds also, such as cruelty etc., then the Family Courts shall proceed
with the case in accordance with law to determine by recording of evidence that the fault lies in
which of the parties and which of the parties are entitled to it."

9. For the reasons stated hereinabove, the learned Family Judge Hafizabad's order dated 17-112008. and the learned Additional District Judge, Hafizabad's judgment/decree dated 30-1-2009
are set aside and the case is remanded to the learned Judge Family Court, who shall frame issues,
if not already framed and decide the petitioner's suit for the dissolution of marriage in the light of
the evidence produced by the parties.
S.A.K./S-163/LCase remanded.
Case law 5
2010 C L C 58
[Karachi]
Before Faisal Arab, J

Syed MATANAT MOAZZAM BUKHARI---Petitioner

Versus
Dr. ARFA SAEED and 2 others----Respondents

Constitutional Petitions Nos.S-337 and S-444 of 2007, decided on 9th September, 2009.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.10(4)---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(ix)---Suit
for dissolution of marriage on ground of Khula---Failure of re-conciliation between parties at
pre-trial stage---Effect---Wife had a right to seek Khula from husband through a Court of law,
when relations between them were strained to such an extent where they became
irreconcilable---Wife in the present case had expressed her irretrievable position that she could
no more live in peace and harmony with husband---Wife was granted Khula in circumstances.

Shariat Petition No.1/K of 2007 fol.

Shafi Muhammadi for Petitioner.

M.A. Qadri for Respondent No.1.

Date of hearing: 27th August, 2009.

JUDGMENT

FAISAL ARAB, J.---The petitioners of these two petitions are real brothers whereas respondent
No.1 of these two petitions are real sisters. In the third week of April, 2005 both the sisters
married to the two brothers. Hardly a year passed that their relations reached a point that both the
sisters had to leave their matrimonial homes and return back to their brothers' house. They then
in the year, 2006 filed suit for dissolution of marriage by way of "Khula" and return of dowry
articles. The suits were decreed and Khula was granted.

2. These two petitions have been filed by the two brothers against the said orders passed by the
Family Judge, Karachi (East) in Family Suit No.1865 of 2006 and Family Suit No.1404 of 2006
granting Khula to the two sisters.

3. The learned counsel for the petitioner at the very outset argued that in order to obtain a decree
of Khula from the Court of their own choice, the two sisters filed suits for dissolution of
marriage by giving address of Gulistan-e-Jauhar that falls within the limits of District (East),
Karachi whereas their actual place of residence is in Nazimabad, which falls within the limits of
District (Central), Karachi. The second ground that has been urged by the learned counsel is that
the question whether Court can grant Khula was sub judice before the Federal Shariat Court,
which though has decided the matter but an appeal against such decision has been preferred and
therefore this Court may not proceed with the matter until the Shariat Appellate Bench finally
decides the pending controversy on "Khula".

4. In support of his first contention, that suits for dissolution of marriage were not filed in the
Courts within those jurisdiction the two sisters reside, the learned counsel for the petitioners has
referred to the address given on the title of the suit in which the address has been shown to be of
Gulistan-e-Jauhar whereas in the Nikahnama the place of residence of the two sisters is of
Nazimabad. The learned counsel further states that after obtaining preliminary decree in the first
case the letter to reconciliation committee was written at the same address of Nazimabad that
was given in Nikahnama which clearly shows that the place of residence of the two sisters was
always Nazimabad and never been in Gulistan-e-Johar as was shown in the plaint.

5. In reply to the first contention, the learned counsel for the respondent No.1 has argued that the
respondent No.1 has two brothers, one living in Gulistan-e-Jauhar and the other in Nazimabad
and at the time of filing of the suit the two sisters were living with their other brother who lives
in Gulistan-e-Jauhar therefore there was no misrepresentation, fraud or any ill intention in
showing Gulistan-e-Jauhar's address as their place of residence.

6. It is not the case of the petitioners that the residential address that was shown on the plaints
was of someone else and not of the two sisters or their brother. There is no categorical plea in
this regard in the written statements that two sisters were not residing at the address of Gulistane-Jauhar. Mere a plea has been taken that the Court has no jurisdiction, which would not be
enough to hold that the Court in which suit was filed had not jurisdiction to try the suit.
Furthermore, now that decision has been finally given on merits and nothing was brought on
record to establish that Gulistan-e-Jauhar address was not the place of residence of the two
sisters, what needs to be examined is whether there was any legal infirmity in the decisions. If
there is no legal infirmity then their validity cannot be doubted on a vague plea that suit was filed
before a Court having no jurisdiction which is not supported by clear and unambiguous material.

7. Insofar as the merits of the case are concerned, the case of the two sisters is that after
contracting marriage, the petitioners have not only been abusing them but they have also been
physically harming them on petty issues. Thus they blamed their husbands for humiliation and
maltreatment which left no other alternative for them but to seek "Khula".

8. During pendency of the proceedings the operation of the impugned judgment was stayed till
the disposal of the petition filed by the petitioner before the Federal Shariat Court. The Federal
Shariat Court vide its decision dated 28-5-2009 disposed of the petition, the findings thereof are
very clear, hence there is now no legal impediment to decide these petitions.

9. In the case before the Federal Shariat Court the case of the petitioner was that subsection (4) to
section 10 of the Family Courts Act, 1964, is repugnant to the injunctions of Islam as laid down
in the Holy Quran and Sunnah of the Holy Prophet (peace be upon him).

10. The case of the petitioners before the Federal Shariat Court was that "Khula' can only be
granted to the wife if the husband consents to it and no Court has the authority to order
dissolution of marriage by way of Khula if the husband does not agree to it. On this issue it is
worthwhile to reproduce following excerpts from the judgment of the Federal Shariat Court
given on 28-5-2009 in Shariat Petition No.1/K of 2007: ---

(11) "Hence we may mention that although the marriage has a moral, legal and spiritual bearing
on the parties and is publicly sanctified or a "Khutba", in the presence of witnesses and is rightly
considered a Sunnah of the Holy Prophet (peace be upon him), it is not a sacrament; it is not
irrevocable but; in essence, it is civil contract between husband and wife which creates mutual
rights and obligations. This contract is a life long commitment, meant to last happily for the
whole life between husband and wife, as hinted at by the Qura'nic Verse, calling it "a firm
pledge" (4:21). The main purpose referred to by another Qura'nic Verse (30:21) is love, peace
and tranquility and therefore both the spouses are expected and required to maintain cordial,
harmonious and loveable relations. For this purpose various instructions have been given by the
Holy Qur'an. It has ordained "Live with your wives gracefully" (4:19). In continuation of the
same it has highlighted the importance of tolerance and peaceful coexistence, it says: "if you
dislike them in any manner, it may be that you dislike something in which Allah has placed much
good" (4:19).

(12) Both the spouses have mutual rights and obligation and, as a matter of right, must enjoy the
same, having regard to the moral, social and ethical values, as has been unambiguously advised
in the verses mentioned herein above.

(13) However, there are always ups and downs in the mutual relations between the spouses. At
time the relations become so strained that the spouses feel unable to maintain a happy peaceful
union within the limits prescribed by Almighty Allah and His Messenger (2:229). In such
circumstances it has been directed that:--

"If you fear a,breach between the two (i.e. husband and wife), appoint an arbitrator from his
people and an arbitrator from her people; if they both want to set things right Allah will bring
about reconciliation between them.- Allah is All-Knowing, All-Aware" (4:35)."

. The arbitration to bring about peace between the spouses may not succeed. The
reconciliation efforts may fail altogether and the spouses, resultantly, may come to a dead lock.
Then naturally both the spouses are allowed to terminate the contract entered into earlier by their
mutual consent. According to Islamic injunctions the marital contract,' in circumstances, can be
dissolved either by the husband arbitrarily, on his own initiative, or at the instance of the wife, on
the basis of Khula, or by mutual agreement. In all these options there are certain conditions to be
followed. However, the spouses have been reminded to keep in mind that both divorce and
"Khula" are most undesirable options and are allowed only when they genuinely come to the
conclusion that continuation of their union is harmful, making them unable to perform their
mutual obligations amicably enough to live within the bounds prescribed by Almighty Allah The
Holy Prophet (peace be upon him) while referring to Divorce is reported to have said that the
most detestable of lawful things in Allah 's view is divorce.

(14) Be that as may, a marriage may be dissolved not only by Talaq (divorce) which is the
arbitrary act of the husband, but also by mutual agreement of the spouses which is called
"Mubarat". Likewise it can be dissolved at the instance of the wife in which case she gives or
agrees to give a consideration to the husband for her release from the marriage tie. Termination
of the marriage by way of Talaq or Khula are the unanimously recognized ways of the
dissolution of marriage and continuously being followed since the period of Holy Prophet (peace
be upon him) till date, whenever occasions demanding the same have arisen. Normally, extra
judicial divorce is preferred in Islam to save the spouses from unnecessary litigations. Islam
rightly expects the Muslims to be God fearing responsible and mature enough to act wisely and
judiciously. However, all people are not alike. The aggrieved spouses may not be reasonable.
Therefore, in this connection, a question regarding the exercise of the right of "Khula" by the
wife has been agitated to the effect that whether dissolution of marriage when asked, at the
instance of wife can be decreed by a Qazi himself or even then also, it would be subject to the
approval of her husband.

(15) The majority of learned counsel for petitioners as well as of the Jurist Consults contended
that dissolution of marriage by way of Khula can be effected only by an offer from the wife to
compensate the husband if he releases her from his marital tie, and acceptance by the husband of
the offer. In their opinion a Qazi before whom prayer for dissolution of marriage is made is not
authorized to decree in her favour if the husband is unwilling to accept the offer. This means that

the husband has an upper hand in the matter throughout and the wife unless allowed and
divorced by the husband, or her demand for Khula before a Qazi, has still to continue in his
wedlock forever.

The proviso of section 10(4) of the Family Courts Act, 1964 has made` it binding on the Court to
pass a decree in case reconciliation fails at pre-trial stage without recording the evidence in the
matter which is against the Injunction of Holy Qur'an and the Sunnah of the Holy Prophet (peace
be upon him) as without producing any evidence in respect of liking and disliking on the basis of
which the compromise is refused during the pre-trial proceedings the Family Court is bound to
pass a decree for dissolution of marriage."

(18) The word "Khula" literally means "to put off". In the context of verse which states "They are
garments for you and you are garments for them". It denotes laying down by the husband of
rights and authority over his wife, at her instance, on acceptance of consideration by means of
the word "Khula"..But a question arises if the husband does not agree to this arrangement
and refuses to release her from his marital tie by not accepting any compensation even and also
declines to divorce her, what should be the course of action for the wife? What would she do if
reconciliation, fails and the husband proves adamant not to dissolve the marriage? Will it be
justified to leave the wife who cannot live happily or perform her marital obligations grope in the
darkness? Should she be pushed back to her husband to remain tongue tied, tight--lipped,
depressed, dejected, having a miserable survival throughout her whole life? Should she be kept,
at the mercy of her in-laws, vulnerable to indecent immoral life? Can anyone call this sort of
situation morally justified on any standard? Will this position assigned to her not defeat the very
object of marital peace and tranquility? Who will be considered responsible if she cannot bear
the mental agony in this state of affair and put an end to her life by setting herself on fire or adopt
any other method for committing suicide, which is our normal observation, off and on, in
different parts of the country? Who will stop or what will prevent her to administer poison to her
husband if she finds herself entangled in a "holy dead lock"?.........As mentioned above "Justice
for all" is the essence social teachings of Islam. No one is to be harmed.

It has been declared that "Let no harm be inflicted nor suffered in Islam". The Holy Qur'an has
repeatedly stressed the husband's duty to keep the wife with kindness. It has been directed to
keep them in good fellowship or let them go with grace (2:229). At another place it has been
asked the husband to "retain them in kindness or set them free with kindness" (2:231). The
husbands have been ordered not to retain them (unjustly) for injury and not to exceed the limits
(2:231). "Treat them with grace and kindness" (4:19) is a command and it has been obeyed in
letter and spirit. These pieces of command are not mere instructions or admonitions to be left to

the sweet will of the husband only. An Islamic State is bound to implement them through suitable
legislation so that it is ensured that none of the spouses is harmed or treated unjustly. It is dutybound to constitute proper judicial forums where every one gets justice and where grievances are
properly redressed. Obviously Islam does not intend to force a wife live a miserable life, in a
hateful unhappy union, forever. If she is unhappy and reconciliation fails, she should be entitled
to get relief whatsoever. This is what justice demand. This is referred to in the verse. "Women
shall have rights similar to the right against them, according to what is equitable" (2:228).

They (Men) can directly exercise their right of divorce without any recourse to Court of law
whereas in case of `Khula' the wife has to seek indulgence of the Court, if her husband does not
agree to her demand of `Khula'. The course of judicial process provides an opportunity to the
wife to thoroughly consider pros and cons of her demand for `Khula'.

Both wife and husband are provided opportunity to consider .and reconsider their course of
action and both have to bear financial liability if they insist on separation. No one has any
superiority over the other in respect of their rights and responsibilities.

The upshot of the above discussion is that there is no specific verse or authentic Ahadith that
provides a bar to the exercise of jurisdiction by a competent Qazi to decree the case of Khula
agitated before him by a wife, after reconciliation fails. As discussed above in detail, the Ayaat
and Ahadith relied upon by the petitioners neither specifically relate to the issue of Khula or to
the lack of authority of a Qazi duly authorized by an Islamic State to resolve the disputes
between husband and wife. The interpretation of the said Verses and Ahadith is also not
unanimous.

11. From the above discourse in the judgment of the Federal Shariat Court, it is evident that the
wife has a right to seek Khula from her husband through a Court of law in case the relations are
strained to such an extent where they become irreconcilable. In the present case the two sisters
have expressed their irretrievable position that they could no more live in peace and harmony
with the petitioners and on such basis the Family Courts have granted Khula to them. Therefore,
this Court finds no legal justification to interfere with the findings of the Courts below:
Consequently, both the petitions are dismissed in limine.

S.A.K./M 186/KPetitions dismissed.