' MUHAMMAD REAZ AKHTER CHAUDHRY, appeal, with the leave of Court, is directed against the judgment of the Shariat Court of Azad Jammu and Kashmir dated 6-10-2006, whereby the appeal filed by the appellant against the judgment and decree of the learned Judge Family Court Kahuta was dismissed.
2. The brief facts giving rise to the instant appeal are that the respondent (plaintiff) brought a suit for dissolution of marriage. It was averred by. Her that the Nikah was performed with the appellant (defendant) on 27-5-1984. An amount of Rs,40,000 was fixed as dower which was not paid. The appellant (defendant) promised to pay the 'dower on demand, but despite repeated demands did not pay the same. Therefore, she is entitled to the decree for dissolution of marriage. It was further alleged by her that after the Nikah, she gave birth to a son and two daughters. The defendant always treated her cruelly, therefore, she is entitled to dissolution of marriage . It was further averred by her that the defendant also compelled her for unnatural offence but she refused, upon which he snatched the ornaments from her and turned her out of house. The defendant levelled certain allegations against her and damaged her reputation. It was also averred that the relations between the parties were so much strained that they could not maintain the limits ordained by Almighty Allah. Alternatively she craved for dissolution of marriage on Khula'. This suit was contested by the appellant-defendant. After the trial of suit, the learned Judge Family Court decreed the suit for dissolution of marriage on the ground of Khula' in lieu of Rs,40,000 which was the amount of dower but it was also held by the learned Judge Family Court that as the amount of dower has not been paid by the defendant, therefore, it shall be deducted and the defendant is not entitled to Rs,40,000. Feeling aggrieved from the said judgment and decree, the appellant filed an appeal before the Shariat Court of Azad Jammu and Kashmir. The learned Chief Justice of the Shariat Court dismissed the appeal. The instant appeal has been filed against the aforesaid judgment of the Shariat Court.
3. Syed Nazir Hussain Shah Kazmi, the learned counsel for the appellant, argued that violation of section 12 of the Family Courts Act has been committed by the Family Court. He submitted that under the aforesaid provision of law it was enjoined upon the learned Judge Family Court to make an effort for effecting compromise or reconciliation between the parties after the closure of evidence, but no such effort was made by the learned Judge Family Court, therefore, the aforesaid provision of law has been violated by the learned Judge Family Court. This important point has not been considered by the learned Judge of the Shairat Court. It was next contended by the learned counsel that there was no ground for dissolution of marriage on the ground of Khula'. The plaintiff- respondent has pleaded Khula' on the ground that the defendant behaved her cruelly, but she has failed to prove the allegation of cruelty and all other allegations stated in the plaint. There was a chance of reconciliation but no effort was made by the learned Judge Family Court, therefore, it could not be said that there was no chance of reconciliation between the spouses. The learned counsel further argued that the amount of dower worth Rs,40;000 was paid to respondent (plaintiff) but the lower Court has wrongly held that the amount was not paid to her.
4. While controverting the arguments of the learned counsel for the appellant, the learned counsel for the respondent argued that the judgments of the lower Courts are based on sound, cogent and sagacious reasons, therefore, the same do not require any indulgence by this Court. It was next submitted by the learned counsel that the respondent (plaintiff) hates the appellant (defendant).
The plaintiff clearly stated in her statement that she hates defendant and does not want to live with him at any cost. He submitted that keeping in view the circumstances of the case it is crystal clear that there is no chance of reconciliation between the parties and there was no alternative with the lower Courts except to dissolve the marriage on the basis of Khula'. The learned counsel further argued that the amount of dower was never paid to the respondent (Plaintiff) and as such has been admitted by the appellant (defendant) in the agreement and his statement. Therefore, the judgments of the lower Courts are perfectly legal.
5. We have heard the learned counsel for the parties and have given our utmost muse to the arguments advanced by the learned counsel for the parties. We, for our own satisfaction, summoned Mst. Gul Taj - and Muhammad Shafique and tried our level best that the parties should compromise with each other. Mst. Gul Taj has two daughters and one son, who are well-grown up but she stated before the Court that she is not willing to live with the appellant at any .Cost. The case was adjourned and she was further provided chance to think over and then state before the Court. On the next date of hearing she again appeared before the Court. Both Muhammad Shafique and Mst. Gul Taj were present in the Court. Mst. Gul Taj flatly refused to live with the appellant at any cost. Therefore if at all an effort would have been made for reconciliation by the learned Judge Family Court, it would have not made any difference because Mst. Gul Taj is not willing to live with the appellant at any cost.
6. It is the principle of Islam that where it is apprehended that the spouses cannot keep together within the limits ordained by Almighty God then the marriage has to be dissolved after directing the wife who claims A dissolution of marriage to return the benefits whatever she has derived from her husband. This right is provided through Verse 229 of Sura Baqara, the English translation of which runs as under:-- "Divorce may be (pronounced) twice; then keep (them) in good fellowship or let (them) go with kindness, and it is not lawful for you to take any part or what you have given them, unless both fear that they cannot keep within the limits of Allah; then if you fear that they cannot keep within limits of Allah, there is no blame on them for what she gives up to become free thereby. These are the limits of Allah, so do not exceed them, and whoever exceeds the limits of Allah, these it is that are the unjust."
' The aforesaid Verse clearly allows termination of marriage by the wife after passing consideration to the husband. It is also not necessary that the husband should agree. When the case is before the Judge, he is entitled to pass any order if the husband does not agree to it. This view finds support from a case reported as Mst. Balqis Fatima v. Najm-ulIkram Qureshi PLD 1959 Lah. 566 wherein at page 573 it has been observed as under:-- ....... The reference to the Judge can only mean that he is entitled to pass an order even though the husband does not agree. This interpretation is supported by the two oft-quoted instances of Khula' ordered by the Holy Prophet (PBUH). Both relate to Sabit Ibn-i-Qais. In the first incident, his wife Jamila came to the Prophet and stated her complaint in the following words:-- `Oh prophet of God! Nothing can bring me and him together. When I raised my veil, he was coming from the front with some men. I saw that he was out of them the shortest and the ugliest. I swear by God I do .Not hate him because of any defect in him, religious or moral, but I hate his ugliness. I swear by God that if it was not for fear of God I would have spit at his face when he came to me. Oh Prophet of God, You see how handsome I am, and Sabit is an ugly person. I don't blame his religion or his morals but I fear heresy in Islam.'
' On hearing this the Prophet of God said to Jamila: 'Are you prepared' to return the garden that he gave you.' She said: 'Yes, Oh Prophet of God, and even more'. The Holy Prophet said: `No more, but you return the garden that he gave you', and then the Holy Prophet said to Sabit: 'Take the garden and divorce her'.
' The second incident is of Habiba, the other wife of Sabit, and it is thus stated by Imam Malik and Abu Daud 'One day early in the morning when the Holy Prophet came out of his house, he found Habiba standing there. He inquired from her what the matter was and she said: 'I and Sabit can never pull on together'. When Sabit appeared, the Prophet of God said: 'This is Habiba, daughter of Sehl. She has stated what God wished she should state'. Habiba said, '0, Prophet of God, let Sabit take from me whatever he has given me for that is all with me'. The Holy Prophet told Sabit to take back what he had given her and to release her'. In some versions the words used are `Khale Sabilaha'a and in others 'fariqha'. Both of them mean `dirorce her'".
7. In the aforesaid first case Jamila stated before the Holy Prophet (PBUH) that she does not hate her husband because of any defect in him, either religious or moral, but she hates due to his ugliness. She does not blame his religion or morals. On hearing this, the Holy Prophet (PBUH) said to Jamila whether she was ready to return the garden which he gave her; upon which she said even more. The Holy Prophet (PBUH) said 'no more' but the garden that the husband gave her. It means that the Holy Prophet (PBUH) dissolved the marriage despite the fact that Jamila did not attribute any defect, either religious or moral, in the husband but she disliked him due to his ugliness and the Holy Prophet (PBUH) dissolved the marriage simply on this ground. It is also pertinent to note that she was willing to return her husband more than what she had derived from him but the Holy Prophet (PBUH) said that not more than that benefit which she has derived from husband. It means that the husband is only entitled to benefit which he has given to his wife and not more than that at any cost. It would also not be out of place to mention here that in the period of Hazrat Umar whenever it was found that a wife is serious in her demand for obtaining Khula' and is really unhappy with husband, whatever the reason may be, even if no fault is found in the husband, even then he-dissolved the marriage on the basis of Khula'. We would like to reproduce a case from the regime of Hazrat Umar which is reported in the Balqis Fatima's case:-- " ... ..A woman and her husband appeared before Hazrat Umar The woman wanted a divorce.
Hazrat Umar advised her to live with her husband, but she refused. At this Hazrat Umar shut her up in a dungeon which was full of refuse. After keeping her there for three days, he asked her how she had fared. She replied: 'I swear by God, I have never passed more peaceful nights". At this Hazrat Umar said to the husband: 'Give her Khula' even if it be in lieu of 'her earrings'. (Kushf-ulGhununa). It will be observed that there was no inquiry into the grounds of the wife's refusal to live with the husband. Only Hazrat Umar was convinced that the wife was serious in her demand and was really unhappy with her husband whatever the reason. No fault had been found with the husband."
(Underlining is ours).
8. Maulana Abdul Kalam Azad while interpreting the Verse relating to Shiqaq answered in Tarjman- ul-Qur'an, page 284:-- " It is not contemplated by a marriage that the parties should be tied together in all circumstances, nor that the wife should be just a means of satisfaction of the passions of the husband. The object of the marriage is the creation of a perfect and happy life by the conduct of the spouses and such a life can only be created if there be mutual love and affection and if the limits imposed by God be observed. If for some reasons this is not possible, the object of the marriage has been defeated and it is necessary that the door be opened to the parties for a change. If on the object of the marriage being defeated, separation has not been allowed to the parties, this would have been a cruel limitation of the right of free choice and society would have been deprived of a happy married state of life."
The aforesaid interpretation of Abul Kalam Azad clearly conveys that the basic purpose and object of marriage is creation of a perfect and happy life between the spouses. It can only be done if there is a mutual love B and affection and the limits imposed by Almighty Allah are observed. If it is not possible and the basic object of marriage is defeated, then the marriage has to be dissolved.
9. Now the question emerges whether in the instant case there is a mutual love and affection between the spouses and there is any chance of reconciliation. As stated earlier, we summoned.
Mst. Gul Taj in the Court on two different dates and advised her that she has grownup children, therefore, she should reconcile with her husband. The husband also stated in the Court that he is ready to live with his wife on any sort of terms and conditions whichever she likes but she flatly refused and is not willing to live with him at any cost. We have also gone through the statement of Mst. Gul Taj recorded in the trial Court. In her statement she deposed that the appellant (defendant) attributed false and baseless allegations to her. She is not willing to live with him at any cost. She has developed extreme type of aversion against him. In the cross-examination she deposed that if the husband is willing to provide her all the facilities demanded by her, even then she is not willing to live with him. She further stated that she is not willing to live with her husband even if she is killed. This shows extreme, type of hatred in the mind of respondent (plaintiff).
Therefore, it could easily be said that she is not willing to live with the appellant (defendant) at any cost. The relations between the spouses are so much strained that they cannot live together within the limits ordained by Almighty Allah. Thus the lower Courts have rightly reached to the conclusion that there is no chance of reconciliation between the spouses.
10. Now the next question emerges whether the amount of dower was paid by the appellant (defendant) to respondent (Plaintiff) or not? The respondent (plaintiff) clearly stated that the amount of dower was not paid to her and an amount of Rs,40,000 was fixed as dower. In para. 2 of plaint it has been clearly averred by the respondent that the Nikah of plaintiff was performed with defendant in lieu of Rs,40,000 as dower on 27-5-1984 and the dower was not paid. The defendant agreed that he will pay the dower on demand. In the written statement it was denied by the defendant that Rs,40,000 was fixed as dower but it was averred by him that the fixed dower was paid to respondent (plaintiff), It was not stated that if Rs,40,000 was not fixed as dower, then what was the amount of dower. It is pertinent to note that on 27-5-1984 when the Nikah took place between the parties, at that time an agreement was executed by Muhammad Shafique. That agreement clearly contains that the amount of dower was fixed as Rs,40,000 which was not paid and was to be paid on demand of respondent (plaintiff). There is a statement of plaintiff that Rs,40,000 was fixed as dower and it was not paid to her. She also appeared as a witness and stated as such. Her statement finds corroboration from the agreement dated 27-5-1984. Apart from this, it has been clearly alleged in the plaint in para. 2 that Rs,40,000 were fixed as amount of dower, Which was not paid to her and it was payable on her demand. This para. Was denied by the defendant that Rs,40,000 were fixed as dower but it was not asserted by the defendant that if Rs,40,000 were not amount of dower, then how much dower was fixed and paid by him to plaintiff.
On the one hand there is evidence of plaintiff while on the other there is no evidence on behalf of defendant (appellant) that how much dower was fixed and how it was paid to respondent (plaintiff). Therefore the lower Courts have rightly resolved that the amount of dower was not paid to respondent (plaintiff) and have rightly dissolved the marriage in lieu of amount of dower which was to be paid by the appellant to the respondent.
11. The epitome of the above discussion is that finding no force in this appeal, it is hereby dismissed.