Saturday, 19 May 2012

Khulla is counted as a single talaq in Pakistan

PLJ 2010 Karachi 97

Present: Ms. Rukhsana Ahmed, J.

MUHAMMAD AYUB KHAN--Petitioner

versus

Mst. SHEHLA RASHEED and another--Respondents

C.P. No. S-894 of 2009, decided on 26.11.2009.

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

----S. 5 & Sched.--Constitution of Pakistan (1973), Art.199--Constitutional petition--Pronouncement of khula--Passing of decree in favour of wife by Family Court in lieu of dower amount--Constitutional petition by husband for declaring his marriage with respondent still subsisting due to non-payment of dower amount--Respondent stand on oath--Feels remorse and had changed her mind--Wanted to remain her marriage with petitioner--Plea of respondent that she had filed suit due to misunderstanding; that Family Court had not provided her an opportunity of reconciliation; and that she had changed her mind and wanted to maintain her marriage with petitioner--Validity--Pronouncement of Khula' by Court would amount to a single divorce--Petitioner would be at liberty to re-marry respondent after solemnization of Nikah without intervention of third person--Impugned judgment/decree was set aside.           [P. 101] C

Khula--

----Pronouncement of khula--Question of--Whether spouse after pronouncement of dissolution of marriage by way of khula passed by Family Court can rejoin without intervention of third person--Amount of dower or dowry articles had not been exchanged--Effect of--Pronouncement of Khula by the Court would amount to single divorce--Held: Until the third divorce takes place the petitioner would be at liberty to marry his wife again.        [P. 99] A & B

Mr. Umar Farooq Khan, Advocate for Petitioner.

Respondent present in person.

Date of hearing: 26.11.2009.

Order

Petitioner has prayed to declare that the marriage still subsists and order 16-10-2009 passed in F.S. No. 1538 of 2008 by Xth Civil Judge/Judicial Magistrate Karachi South is illegal and ineffective under the law whereby learned Civil Judge/Judicial Magistrate has dissolved the marriage between Mst.Shehla Rasheed daughter of Rasheed Khan and Muhammad Ayub Khan son of Basher Khan in lieu of dower amount. Learned counsel for the petitioner contended that dower has not yet been exchanged. He further contended that suit for dissolution of marriage has been filed by Respondent No. 1 on instigation of her brother, under duress, coercion and misrepresentation.

Respondent No. 1 Mst. Shehla present in Court states on oath that suit for Khula' has been filed by misunderstanding, no opportunity of reconciliation was given to her and she has three minor children therefore she feels remorse, and has changed her mind voluntarily and wants to maintain her marriage with the petitioner.

As per submission made on behalf of petitioner and statement of Respondent No. 1, settlement has been arrived at between the parties and both want to live as husband and wife, neither any occasion has been provided to remove the differences nor chance of pre-trial has been given, therefore, the suit was filed due to misunderstanding.

The question raised in this petition is whether the petitioner and Respondent No. 1, after pronouncement of dissolution of marriage by way of Khula' passed by the competent Family Court in lieu of Dower amount, can rejoin without intervention of third person when it is admitted by both the parties that the said amount of dower or dowry articles have not been exchanged.

In order to resolve the question, I would refer to Majmua-e-Qawaneen-e-Islam, Vol. II, Qanoon-e-Talak written by Tanzil-urRehman at Pages 369 and 597 which stipulates:--

What could be deduced from the above referred reference is that pronouncement of Khula' by the Court would amount to a single divorce, therefore, until the third divorce takes place the petitioner would be at liberty  to  marry  his  wife  again.  However,  I  would  like to refer to the Book of Hedaya or Guide by Charles Hamilton, 1975, Edition at Page 112 of Chapter-VIII and Page 107, which provides as under:--

"Which occasions a single irreversible divorce:--And where, the compensation is thus offered and accepted, single divorce irreversible takes places, in virtue of Khula'.

At Page 107 it provides:--

"In a case of irreversible divorce, short of three divorces, the husband is at liberty to marry his wife again, either during her Idit, or after its completion, as the legality of the subject still continues, since the utter extinction of such legality depends upon a third divorce; and accordingly until a third divorce takes place, the legality of the subject continues."

However, I would also like to refer to a case reported as Gulzar Hussain v. Mst. Mariyam Naz 2000 MLD 447, where petitioner invoked the Constitutional Jurisdiction of this Court by filing a petition whereby he assailed the Judgment/Decree of Dissolution of marriage by way of Khula' passed by the learned Family Judge in lieu of dower amount. In that petition the petitioner and his wife filed an application praying therein to dispose of the petition in the light of settlement arrived at between the parties. Hamid Ali Mirza, J. (as his Lordship then was) appointed Mr. Shafi Mohammadi as amicus curiae. The counsel for the petitioner produced Fatwas from Dar-ul-Uloom, Taleem-ul-Quran; Dar-ul-Uloom, Farooq-e-Azam and from Jamia Farooqia wherein it had been stated that judgment of Family Judge ordering dissolution of marriage by way of Khula did not have legal status and was not admissible in Shariah and the parties may continue to be in the Nikah and the respondent (wife of the petitioner) could not marry another person. The Honourable Judge after going through the authenticated observations made by the learned Scholars in the books of Majmual-e-Qawaneen-e-Islam, Vol. II, Qanoon-e-Talak written by Tanzil-ur-Reham Pages 369 and 597, the Hedaya or Guide by Charles Hamilton, 1975, Edition at Chapter-VIII and after hearing the counsel for the petitioner as well as the amicus curiae, disposed of the said petition while annulling/setting aside the dissolution of marriage by way of Khula' and observed as under:--

"In the circumstances the pronouncement of Khula' by the Court would amount to a single divorce therefore, until the third divorce takes place the petitioner would be at liberty to marry his wife again, consequently the parties can rejoin as husband and wife on the solemnization of Nikah without the intervention of third person."

For the foregoing reasons, while keeping in view the authenticated observations made by the learned Scholars as well as respectfully following the decision of this Court, hold that pronouncement of Khula' by the Court would amount to a single divorce until the third divorce takes place. The petitioner would be at liberty to re-marry his wife and the parties can rejoin as husband and wife on the solemnization of Nikah without intervention of third person. Resultantly, Judgment and Decree of the Court in respect of dissolution of marriage between the parties on the basis of Khula' is declared annulled and is therefore set aside. In view of the above, this petition stands disposed of.

(R.A.)  Petition accepted.


No comments:

Post a Comment

Contact International Lawyer

If you have any queries related with this post you can contact at internationallawyerinfo@gmail.com

Regards,
Salman Yousaf Khan
Chairperson
International Lawyer
+92-333-5339880