' 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-eJauhar'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 Gulistan-e- 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 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 iR 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 duty-bound 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. Rife to thoroughly consider pros provides an opportunity to the and cons of her demand for IIChtila'.{{PAGE CUT}} ' 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 ease 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 Court 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.
Petitions dismissed.
2010 e- t64 [Lahore] Before ljaz-ul-Ahsan, .1 TEHKEDAR JEHAGIR----Appellant versus IZAT FAZEEL and others----Respondents S.A.Os. Nos.150 and 151 of 2009, decided on 16th October, 2009.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--- ----Ss. 13 & 15---Ejectment of tenant---Bona fide personal' need of landlord---Plea of---Scope---Landlord categorically stated in his statement that he wanted to establish a showroom for electronics by combining four shops, two of which had already been got vacated and he needed the other two shops to set up his business where his brothers could join him in running the showroom of electronics; such evidence could not be disproved or shaken in cross-examination---Solitary statement of the landlord was sufficient to establish bona fide personal need. [p. 67] B & C
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--- ----S. 13---Ejectment of tenant---Plea of,--Bona fide personal need of landlord---Each case had to be decided on its own merits---Tenant could not be allowed to force a landlord to let him use the leased premises for an indefinite period notwithstanding landlord's personal need. [p. 67] A Mian Faheem Altaf for Appellant.
' IJAZ-UL-AHSAN, J.--- By this order, I propose to dispose of S.A.O. No.150 of 2009 and S.A.O. No.151 of 2009 as common questions of law and facts are involved in these appeals.
2. The appeals are directed against judgment and decree passed by the learned Civil Judge at Sialkot on 20-6-2009, whereby the appellants were evicted from the premises under their occupation as tenants. The appellants were in possession of Shops Nos.4 and 5 in a premises which was initially owned by the father of respondent No.1 and after his demise had devolved upon the respondents. It is common ground between the parties that it was an oral tenancy and no written document in this regard was produced before the learned trial Court. Although various grounds were taken in the suit for ejectment filed by the respondent No.1 including default, damage to the premises, expiry of lease period etc. The main ground for seeking eviction was bona fide personal need of the landlord.
3. The suits were contested. The learned trial Court framed as many as eight issues. On behalf of the respondents, respondent No.1 appeared as a witness in support of the case and produced Ali Akbar as P.W.2. The petitioner appeared as a defence witness and produced five other witnesses including the post man to establish that there was no default and that the premises in question was not required by the landlord on account of personal need.
4. The issue of default was not proved before the learned trial Court. It was not seriously contested in the appeal either. In support of the issue relating to personal need, respondent No.1 stated that two of his brothers were working in Lahore and Kuwait, and the family was running a business of electronics. They wished to set up a large show room for electronics by combining four shops. They had already got two shops vacated and needed the other two (subject matter of the present appeals) to complete the show room where the respondent's brothers could set up their electronics business on their return. Respondent No.1 was cross-examined. The petitioners could not bring anything on record to convince the learned subordinate Courts that the shops in question were not required by way of personal need. The only material placed on record was certain documents relating to suit filed in 2004 by respondent No.1 against some other tenant relating to some other shop, which had been withdrawn in terms of a compromise where under the tenant had agreed to increase the rent by 100%. On the basis of the said record it was argued that the suit against the appellants was also a device to enhance rent and that there was no bona fide personal need. The said evidence did not find favour with the learned lower Courts who held that the said fact did not preclude the respondents from filing a suit for possession/ejectment at a subsequent stage, if there was a bona fide personal need.
5. The other issue raised by the appellants was that the shop in question belonged to all legal heirs of the original landlord, which included three brothers and there sisters. It was, therefore, argued that without impleading all the said legal heirs, the respondent No.1 alone could not maintain the suit. The learned lower Courts found that the appellants had been paying rent to respondent No.1 which was evident from the rent payment receipts produced by the appellants themselves.
Therefore, having accepted respondent No.1 as their landlord, they could not deny his right to file the suit. Even otherwise, one of the landlords can maintain a suit for ejectment of a tenant unless separate tenancy agreements are found to have been executed and the tenants have been paying rent to the landlord separately, which was not the case here. As such the said plea of the appellants was not accepted by the learned subordinate Courts.
6. The learned counsel appearing on behalf of the appellant has contended that the learned subordinate Courts did not properly appreciate the effect of Exh.D.1 to Exh.D.8. These documents related to record of the case which had been filed by respondent No.1 against another tenant about five years ago and was settled by way of a compromise. The learned counsel submits that the said documents established that the suits against the petitioners had been filed to harass them and to pressurize them to increase the amount of rent payable by them.
7. I have heard the learned counsel for the appellant and perused the record with his assistance.
The learned counsel has not been able to show anything from the record that the respondent No.1 had demanded enhancement of rent at any stage. Even otherwise the suit which was settled about five years ago cannot be used for all times to come in the future to defeat proceedings for eviction of a tenant on the ground of personal need. Each case has to be decided on its own merits. A tenant cannot be allowed to force a landlord to let him use the leased premises for an indefinite period notwithstanding landlord's personal need.
8. The other point argued by the learned counsel for the appellant is that there was nothing by way of evidence on record to establish bona fide personal need. As discussed above, respondent No.1 had categorically stated in his statement that he wanted to establish a show room for electronics by combining four shops, two of which he had already got vacated and he needed the other two shops to set up his business where his brothers- could join him in running the show room of electronics. This evidence could not be disproved or shaken in cross-examination. The evidence as well as the other facts and circumstances relevant to the issue in question were taken into consideration by the learned lower Courts, who found the evidence believable and reliable enough to support the plea of the respondent No.
1. It has been held by superior Courts that the solitary statement of the landlord is sufficient to establish bona fide personal need. The learned counsel for the appellant has not pointed out any evidence on record that may have led to a different conclusion.
9. I have examined the entire record and gone through the judgments and decrees of the learned lower Courts. Nothing has been pointed out in the decisions of the lower Courts which may be contrary to the law. Further the learned counsel has not pointed out any material issue which has not been determined or any substantial error or defect in the procedure adopted by the learned lower Courts that may possibly have led to a different result.
10. In view of the above, these appeals fail and same are accordingly dismissed. There will be no order as to costs.