' SHEZADA MAZHAR, J.--This judgment shall dispose of Writ Petition No,2163 of 2009 as well as Writ Petition No,22312 of 2010 involving common questions of law and facts.
2. Writ Petition 2163 of 2009 raises a grievance against orders dated 21.10.2008 and 17.12.2008 whereby both the courts below dismissed petitioner's application filed under Order VII, Rule 11, C.P.C.
Whereas in Writ Petition No,22312 of 2010 petitioner assails legality and validity of judgment and decree of the learned Family Court, Chiniot dated 29.9.2010 whereby suit for dissolution of marriage as well as recovery of maintenance allowance was decreed.
3. Facts prevalent in both the captioned petitions are that on 10.6.2008 Mst. Shamim respondent No,1 filed suit against petitioner Basharat Ahmed for dissolution of marriage as well as recovery of maintenance allowance. Petitioner entered appearance and filed an application under Order VII, Rule 11, C.P.C. Seeking rejection of plaint on the ground that non-Muslims could not invoke jurisdiction of the Family Court for dissolution of marriage on the basis of Khula. The said application was dismissed by Family Court vide order dated 21.10.2008. The appeal arising from the said order was dismissed by the learned Additional District judge, Chiniot vide order dated 17.12.2008. Hence the present writ petition.
4. It may be stated that during pendency of W.P. 2163 of 2009, both the petitioner as well as respondent No,1 entered into a compromise whereby all the pending issues inter se the parties were settled. However, later due to some differences, respondent No,1 moved an application for decreeing the suit which was contested by the petitioner. However, suit for dissolution of marriage and recovery of dower articles was decreed by the Family Court under Section 10 (4) of the Family Courts Act 1964 vide impugned judgment and decree dated 29.09.2010 giving rise to the filing of W.P. 22312 of 2010 by the petitioner.
5. The learned counsel for the petitioner was busy before some other learned Bench of this Court, and petitioner made request to himself argue the case. Prayer was allowed and he was permitted to argue the case himself,
6. Petitioner at the very outset submits that impugned orders of both the courts below are liable to be set aside, inasmuch as, both petitioner and respondent No,1 belong to Ahmadia/Qadiyani sect, and are declared non-Muslim in September 1974 after promulgation of Prohibition of Qadiayaniat Presidential Ordinance 1974, He further submits that no Ahmed' can proclaim himself as Muslim and therefore respondent No,1 being Ahmed' was precluded from filing suit for dissolution of her marriage on the basis of Khula, because Khula can only be claimed by a Muslim woman and not by a non-Muslim woman. Submit that not only the orders passed on the application moved by petitioner under Order VII, rule 11, C,P.C, being illegal and unlawful are liable to be wet aside but also the decree passed under' Section 10(4) of the Muslim Family Courts Act 1964 is liable to be set at naught.
7. On the other hand learned counsel appearing on behalf .Of respondent No,1 vehemently supported the orders and the judgment of the Family Court. Learned counsel while relying upon Mst. Noreen lqbal v Sohail lqbal and others (2005 CLC 1472) submits that provisions of West Pakistan Family Courts Act, 1964 are equally applicable to all Muslims and Non-Muslims regardless of their faith and personal law.
8. I have heard the petitioner as well as the learned counsel for respondent and have also gone through the record as well as the law on the point involved.
9. Essentially petitioner has raised twofold objections, firstly that West Pakistan Family Courts Act, 1964 is inapplicable to non- Muslims and secondly that a non-Muslim woman cannot approach the Family Courts established under West Pakistan Family Courts Act, 1964 for dissolution of marriage on the basis of Khula.
10. I shall first deal with the objection with regard to the applicability of the West Pakistan Family Courts Act, 1964 whether a non-Muslim can approach the Family Court in order to resolve a family dispute?
11. The above raised question was already adjudicated upon by this court in the case reported as Riaz Javaid v. Sheraz Ahmed and 4 others (2010 CLC 1925) wherein the learned single judge of this court held that: "it is abundantly clear that the Family Courts established under the Act, 1964 embraces personal laws of all religions and entertain causes relating to matters mentioned in Para 1 of the schedule to the said Act which include matters pertaining to non-Muslims (including Ahmadies) as well as matters which arise out of non-codified personal law".
' The above quoted judgment clearly holds that the followers of all religions fall within the purview of the provisions of Family Courts Act, 1964 being the subject to this Act. Therefore, the first objection of the petitioner with regard to the applicability of the Act 1964 is repelled.
12. Adverting to the second issue relating to decree of dissolution of marriage on the basis of Khula.
I shall first see the claim as stated in the plaint. Respondent No,1 filed the suit for dissolution of marriage and recovery of dowry articles and in paragraph No,5 of the plaint respondent No,1 mentioned grounds for seeking decree of dissolution of marriage which include; a) Non-payment of Haq Maher, b) Non-payment of maintenances allowance for more than two years, c) Cruelty and d) on the basis of Khula.
13. The Family Court after recording statement of respondent No:1 decreed suit in the following terms: "So Keeping in view the statement of plaintiff and provision of Section 10(4) of Family Courts Act 1964 marriage between the parties is hereby dissolved on the basis of Khula"
14. It is therefore necessary to first define Khula. It has been definedao be a form of divorce (legal separation between spouses) which is made with the consent and at the instance of wife, if she gives or agrees to give any consideration to husband for her release from the matrimonial obligations. In other words it can be said that it is laying down by the husband of his right and authority over his wife for any exchange. Khula can also be defined as a means of separation of wife from her husband in return for a payment; the husband takes the payment and lets his wife go, whether this payment is the Mahr which he gave to her at the time of marriage or more or less than that.
15. In fact Khula is a way to release the wife from matrimonial bond and can be exercised by wife if the circumstances divulge that it is impossible for her to live within the limits prescribed by the Almighty Allah and the compelling of wife to live with her husband will give rise to a hateful union, then the courts are bound to grant Khula to claimant wife where she has expressly claimed or has omitted to claim in her pleadings or in case any other ground for seeking dissolution of marriage could not be proved by her. In this regard reference is made to PLD 1959 Lahore 566 (Mst.Balqis Fatima v. Najam ul Ikram Qureshi)
16. From the above definition it is clear that Khula is a form of divorce which can be claimed by wife through court or otherwise on payment or in lieu of dower (consideration for marriage) as set forth by spouses at the time of marriage.
17. Now it is required to be seen is whether the concept of Khula is an Islamic concept or this form of dissolution of marriage/divorce is also available in other religions.
18. The basic principle concerning Khula is the verse of the Holy Quran in which the Almighty Allah says (interpretation of the meaning): "And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal- money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allaah (e.g. To deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allaah, 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)" [al-Baqarah 2:2291
19. Evidence in the above context from Sunnah of the Holy Prophet (PBUH) is that wife of Hazrat Thaabit ibn Qays ibn Shammaas (may Allah be pleased with him) came to the Prophet (peace and blessings of Allaah be upon him) and said, "0 Messenger of Allaah, I do not find any fault with Thaabit ibn Qays in his character or his religious commitment, but I do not want to commit any act of kufr after becoming a Muslim." The Prophet (peace and blessings of Allaah be upon him) said to her, "Will you give back his garden?" (Because he had given her a garden as her Mahr. She said, "Yes." The Prophet (peace and blessings of Allaah be upon him) said to Thaabit: "Take back your garden, and divorce her." (Narrated by al-Bukhari, 5273).
20. Word Khula is not found anywhere either in Black's Law Dictionary or in the Oxford dictionary, therefore, on the basis of the above it is clear as crystal that concept of Khula is purely an Islamic concept. Therefore, Non-Muslim woman cannot claim Khula from the court under the proviso to Section 10(4) of the West Pakistan Family Courts Act 1964 as the same is purely an Islamic concept.
21. In the case in hand, admittedly respondent No,1 is a non-Muslim woman and she had approached the court of law for dissolution of her marriage on different grounds including Khula.
The Family Court while relying upon her statement dissolved the marriage on the basis of Khula vide impugned judgment and decree dated 29.09.2010 without ascertaining and establishing on record whether such concept is available in the personal law of the respondent/plaintiff.
22. For the above mentioned facts and reasons W. P. 2163 of 2009 is dismissed as the Family Courts established under West Pakistan Family Courts Act 1964 had the jurisdiction to adjudicate upon family matters as mentioned in Schedule 1 of the said Act of all religions including the Ahmadies/Qadyanis.
23. W.P. 22312 of 2010 is allowed with the result that impugned judgment and decree passed by the learned Family Court dated 29.09.2010 is hereby set aside. Case is remanded back to Family Court Chiniot to decide the matter afresh after framing issues, and recording of evidence in accordance with law.
24. Before parting with this judgment, I would like to appreciate commendable efforts of Mr. Khurram Khan Virk and Mr. Adeel Majeed Qureshi Research Officers of this Court for having provided valuable assistance for this judgment.