Saturday, 12 July 2014

The base of Khula is verse 229 of Surah Al Baqrah

PLJ 2008 Sh.C. (AJ&K) 160
Present: Iftikhar Hussain Butt, J.
Syed ABDUL QAYYUM SHAH--Appellant
versus
Mst. TANVEER ANDLEEB and 3 others--Respondents
Civil Appeal No. 106 of 2000, decided on 6.2.2008.
Khula--
----Islamic principle of khula--"Surah "Al-Baqrah" verse. 229 of the Holy Quran is the base and origin of the legality of `Khula'--The limits prescribed by Almighty Allah in the verse means the direction to lead a happy life; therefore, before dissolving the marriage on ground of Khula, the Court must satisfy its conscious that there is every apprehension that the spouses will not lead a happy life within the limits ordained by Almighty Allah, the wife wants separation from her husband and she has to pay the consideration--If all the conditions are fulfilled then there is no option left for the Court except to annul the marriage and grant `Khula in favour of the wife.
      [P. 165] A
Principle of Sharia--
----Khula--Decree on basis of `khula', can be passed if the Court comes to conclusion that it was no more possible for spouses to live together within limits ordained by God or not, is a question of fact which depends upon the circumstances of each case.     [P. 166] B
1985 CLC 2509; 1992 SCR 62 1992 CLC 39; 1992 CLC (AJK) 39; PLD 1967 SC 79; 2002 SCR 218; PLD 1975 Lah. 805 & 2005 SCR 82 ref.
Mian Sultan Mahmood, Advocate for Appellant.
Mr. Muhammad Riaz Alam, Advocate for Respondents.
Date of hearing: 6.2.2008.
Order
The above captioned appeal has been filed against the decision and decrees of learned Judge Family Court Mirpur dated 4.4.2006, whereby a decree for dissolution of marriage was passed in favour of Respondent No. 1, herein, against the appellant, herein and the suit for restitution of conjugal rights filed by the appellant was dismissed.
The precise facts forming the background of instant appeal are that Respondent No. 1 filed a suit for dissolution of marriage against the appellant on 31.2.2005 on the grounds of cruelty, mental torture and non-payment of maintenance allowance and on ground of `Khula'.
The suit was resisted by the appellant through his written statement whereby he contented that Respondent No. 1 has got no cause of action. She is mentally disturbed and left home under the pressure of her parents and brothers; therefore, the suit is not maintainable. The appellant further submitted that in case of dissolution of marriage on the basis of `Khula', the appellant is entitled to receive golden ornaments and other household articles owned by him alongwith dower money paid to Respondent No. 1 at the time of marriage.
On 21.4.2005 both the suits were consolidated and the learned Judge Family Court ordered to proceed in the suit for dissolution of marriage.
In the light of pleadings of the parties, the learned Judge Family Court framed the following issues on 23.8.2005:--
1.    Whether the defendant has been treating the plaintiff with cruelty for last 2/3 years? OPP
2.    Whether the defendant is addicted to intoxicating drinks, he hurls abuses and has been snatching the pay of plaintiff? OPP
3.    Whether the defendant has ousted her from the house and now plaintiff is living in a rented house, meanwhile neither the defendant tried to bring her back at home nor paid any maintenance allowance to her and the children? OPP.
4.    Whether the plaintiff has developed certain hatred against the defendant, therefore, the parties cannot live together within the limits ordained by Almighty Allah?
5.    Whether the plaintiff is entitled to a decree for dissolution of marriage, if yes then how? OPP.
6.    Whether both the parties have got no cause of action to bring their suits? OPP upon both plaintiffs.
7.    Whether the plaintiff has left the house under the pressure of her parents and brothers? OPP.
8.    Whether the suit of plaintiff is liable to be dismissed? OPD.
9.    In case Issue No. 5 is proved, whether the defendant is entitled to receive dower money alongwith the golden ornaments and other articles from the plaintiff? OPD.
10.   Whether the defendant is entitled to a decree for restitution of conjugal rights in the suit instituted by him? OPD.
11.   Relief.
In support of her case, Respondent No. 1 produced Mirza Wajahat Baig and Hamayoon, her brothers as witness and she also appeared in the witness box. On the other hand the appellant entered into the witness box and produced Syed Shahid Bukhari, a witness in support of his claim.
The learned Judge Family Court after completion of the proceedings passed a decree for dissolution of marriage on `Khula' in favour of Respondent No. 1 against the appellant and also dismissed the suit for restitution of conjugal rights vide its decision dated 4.4.2006. It is the aforesaid decision and decrees which have been assailed through the instant appeal.
Mian Sultan Mahmood, the learned counsel for the appellant argued with vehemence that Respondent No. 1 is mentally deranged who after shifting the appellant from Gujarat to Mirpur left his house without any cogent reason. The learned Counsel for the appellant further contended that the appellant stated before the Court below that Respondent No. 1 also refused to perform her marital obligations. Similarly, it has been deposed by Syed Shahid Bukhari, a witness for the appellant, that Respondent No. 1 hurled abuses to the appellant in his presence but the aforesaid points were not challenged in cross-examination, therefore, all the aforementioned facts have been deemed to be admitted by Respondent No. 1. The learned counsel also submitted that the learned Judge Family Court fell in grave error while dissolving the marriage of the spouses without considering the fact that the suit for dissolution of marriage was filed in year 2005 after 14 years of the marriage and after birth of three children and there is every probability of reunion of the spouses. The learned counsel laid great stress upon the point that a decree for dissolution of marriage on basis of `Khula' cannot be passed on flimsy grounds and on the simple statement of the wife that she had developed aversion and hatred in her mind against her husband rather the Court is obliged to consider all attending circumstances of the case. The learned counsel pressed into service the submission that the learned Judge Family Court also committed an illegality while refusing the return of the golden ornaments and other articles owned by the appellant. The learned counsel finally submitted that the suit for dissolution of marriage may be dismissed and if at all a decree on basis of `Khula' is to be passed, then Respondent No. 1 be directed to return the golden ornaments and all other articles owned by the appellant. The learned Counsel cited the following authorities in support of his arguments:--
1.    1985 CLC 2509.
2.    1992 SCR 62.
Muhammad Riaz Alam, the learned counsel for the respondents controverted the arguments raised by the learned counsel for the appellant and submitted that the statement of Respondent No. 1 is by itself sufficient to annul the marriage on the ground of `Khula', wherein she categorically stated that the appellant is addicted to intoxicating drinks, treats her with cruelty and does not pay any maintenance allowance to her; therefore, she has developed certain hatred against him and cannot live with him within the limits ordained by Almighty Allah. The learned counsel pointed out that the appellant has failed to prove that the golden ornaments or any other articles were given to Respondent No. 1 rather he has admitted in his statement that he could not produce any proof for purchasing the aforesaid articles. The learned counsel maintained that the impugned decision and decrees do not suffer from any infirmity or illegality; therefore, the same may be upheld. In support of the contentions reliance was placed upon 1992 CLC 39.
I have carefully attended to the submissions made at Bar in the light of material available on the record. A perusal of the suit of Respondent No. 1 shows that according to her she was ousted from the house of the appellant in March 2004 and thereafter the appellant did not provide for her maintenance allowance. The aforesaid suit was filed on 3rd February 2005; therefore, the ground for decree of dissolution of marriage for non-providing of maintenance allowance for a period of two years, is not available to her.
I am also in full agreement with the learned Judge Family Court that Respondent No. 1 also failed to prove the factum of cruelty by convincing evidence. However, a careful perusal of the evidence of the parties shows that the spouses cannot live together within the prescribe limits ordained by Almighty Allah and their relations are strained beyond repair. It also flows from the evidence that Respondent No. 1 has developed aversion and hatred against her husband and in no circumstances she is willing to populate with him. In such state of affairs, it is better to annul the hateful union rather to compel Respondent No. 1 to go back to her husband to lead an unhappy life. The Respondent No. 1 stated before the Court below about the ill-treatment, cruelty, non-payment of maintenance allowance and mental torture of her husband. She also testified that the appellant is addicted to intoxicating drinks. It is also admitted on the record that Respondent No. 1 was shifted from Gujaratto Mirpur on the condition that Respondent No. 1 will bear all expenses at Mirpur. The Respondent No. 1 is a serving lady and the appellant also owns a school. Surprisingly, he insisted upon Respondent No. 1 to bear all expenses of daily life. She refuted the allegations that she was persuaded by her parents and brothers to live separate from her husband. The appellant has denied the suggestion of ill-treatment to his wife but appellant admitted that he shifted to Mirpur on the condition that Respondent No. 1 will arrange a house and pay the rent of the same from her pocket. The Respondent No. 1 denied the suggestion of reconciliation in clear words.
Mirza Wajahat Baig and Hamayoon, the witnesses for Respondent No. 1, are her real brothers and they also support her version whereas Syed Shahid Bukhari, the sole witness for the appellant, testified that the spouses cannot live together happily in spite of his wish.
It will be pertinent to note here that the appellant has alleged that his wife is mentally deranged woman, whereby on the other side according to Respondent No. 1, the appellant is a drunkard, which by itself is sufficient ground to reach the conclusion that the spouses cannot lead to a happy life.
It is necessary to mention here that the parties have filed many suits against each other which are pending in this Court.
So far as an authority cited by the learned Counsel for the appellant is concerned, does not render any help to him because of the distinguishable facts.
I also do not find any substance in this argument of the learned Counsel for the appellant that certain portions of the statements of appellant and his sole witness were not challenged in the cross-examination; therefore, the case of the appellant stands proved. No doubt, where veracity of a witness is not challenged on a particular point in cross-examination, his evidence on that point would be deemed to have been admitted by the other side but in the instant case the salient and important features of the evidence has been challenged in the cross-examination by the respondents. In this manner, it has been abundantly proved on the record that Respondent No. 1 has developed an affixed aversion against her husband and now it has become impossible for the spouses to live within the limits of God.
Let me now deal with the Islamic principles of `Khula'. It may be stated that "Surah-Al-Baqrah" verse 229 of the Holy Quran is the base and origin of the legality of `Khula'. The limits prescribed by Almighty Allah in the aforesaid verse means the direction to lead a happy life; therefore, before dissolving the marriage on ground of `Khula', the Court must satisfy its conscious that there is every apprehension that the spouses will not lead a happy life within the limits ordained by Almighty Allah, the wife wants separation from her husband and she has to pay the consideration. If all the conditions mentioned above are fulfilled then there is no option left for the Court except to annul the marriage and grant `Khula' in favour of the wife. In this regard reference can be made to a case titled Safdar Hussain Shah V. Mst. Nisa Fatima (1992 CLC (AJK) 39). The relevant portion of the report at page 41 is as under:--
"When divorce is sought by `Khula' it is enjoined upon the Court to satisfy its judicial conscience that there was sufficient evidence to conclude that wife justifiably developed aversion against her husband and in such position, if separation by `Khula' was not pronounced, she would be subjected to a harsh life in the shape of an unwanted union or living all the time in separation. It is, therefore, expedient to resolve the controversy of `Khula' by resort to the evidence of the parties. Here, it is relevant to state that the circumstances constituting aversion of wife may vary from case to case but the substance of such circumstances must be enough to satisfy that there was a reasonable ground for developing aversion for wife against her husband."
It has been opined in case titled Mst. Khurshid Bibi V. Baboo Muhammad Amin (PLD 1967 SC 79) that the wife is entitled to `Khula' as of right, if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union.
The same view was followed in the case of Mukhtar Ahmad V. Mst. Um-e-Kalsoom & another (PLD 1975 Lahore 805). It was held that "where the parties did not resolve their differences throughout protracted litigation despite efforts made by the Courts, grant of decree for dissolution of marriage through `Khula' was justified."
It was observed in the case reported as Mst. Naqeeba Begum V. Abdul Khaliq (2002 SCR 218) "it may be stated that this is well settled principle of Shariah that a decree on basis of `Khula' can be passed if the Court comes to the conclusion that it was no more possible for the spouses to live together within the limits ordained by God. Obviously, the question as to whether the spouses could live within the limits ordained by God or not, is a question of fact which depends upon the circumstances of each case. It is not necessary that the marriage can only be dissolved on the basis of `Khula' if there exist a deep rooted hatred between husband and wife rather the same can be dissolved on the basis of variety of circumstances which satisfy the Court that it is not possible for the spouses to live as husband and wife as is ordained by God."
The aforementioned principle was also followed in the case titled Zohra Bibi V. Muhammad Saleem & others and Jamila Bibi V. Abdur Rasheed & 3 others (2005 SCR 82). The relevant portion of the judgment at page 85 appears as under:--
"It is really very sad and pity that wedlock between the spouses should be broken for long matrimonial life but when going get toughs, the toughs get going. In view of the unequivocal statement of the appellant that she cannot live with husband at any cost and if she developed severe hatred against him, they definitely cannot live within the limits ordained by Almighty God. If their relationship, love and affection could not be developed in so many years there appears no chance of happy married life and if they are forced to live there is another apprehension of their breaking the limits ordained by Almighty God. Matrimonial relations are based on trust, love, affection, goodwill and sacrifice for each other, if looked, it is forced union not spousism.
It was further observed at page 86 of the report in the following manner:--
"The principle of `Khula' is based on the fact that if a woman has decided not to live with her husband for any reason and there is no chance of reconciliation or her reiterating from that position then it is left to the conscience of the Court to dissolve the marriage through `Khula' and in case of non-dissolution under such circumstances the spouses cannot live within the bounds ordained by Almighty Allah. Hence, dissolution of marriage on the basis of `Khula' must be ordered in the given background of the parties who have resorted to the litigation which is further creating bitterness and in spite of the efforts by the elders, there is no chance of reconciliation between them. Even if decree for restitution of conjugal rights is allowed to remain intact, which is otherwise inexecutable, it will serve no purpose except that wife cannot seek a new life partner and inhuman."
I cannot subscribe to the view of the learned Counsel for the appellant that Respondent No. 1 has not returned the golden ornaments and other articles of the appellant. Suffice to note that the appellant has miserably failed to prove that whether he has given any golden ornaments to Respondent No. 1 or any other articles of the appellant are in her possession. The appellant has admitted in his cross-examination that he could not produce any solid proof about the purchase of articles and he prepaid the list and receipts at his own.
There is no cavil with the authority cited by the learned Counsel for the appellant (1992 SCR 62) that the husband is entitled to demand all the articles and things which he gives to the wife in the form of dower or otherwise but, as stated earlier, in the instant case the appellant miserably failed to prove as to whether he had given any jewelry, gift or other things to his wife and the learned Court below has also fixed the consideration of `Khula', the dower received by the wife at the time of marriage ceremony.
In such state of affairs, the impugned decision does not suffer from any glaring defect or legal infirmity and the dower money is an appropriate consideration for grant of `Khula'.
The crux of proposition is that finding no force, the appeal is dismissed.
(W.I.B.)    Appeal dismissed.
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