' The appeals are directed against the judgment and decree of the learned. District Judge, Kotli, dated 17th January, 1984. As the appeals arise out of a common order, it is proposed to decide the appeals together.
2. In both the appeals the parties have raised controversy of `Khula' and the consideration, ordered to be paid for enforcing the divorce by `Khula'.
' Mst. Weed Begum brought a suit for divorce on 29th March, 1981, in the Court of Additional Sub- Judge, Kotli. She sought decree for divorce on the grounds of :-
(i) non-maintenance ;
(ii) failure to perform, marital obligations
(iii) cruelty ; and
(iv) `Khula`.
4. It was averred that the marriage of the parties took place in 1978 and a sum of Rs, 3,000 was fixed as dower. The plaintiff lived 15 days with her husband when she was beaten and turned out of the house by the husband and was compelled to live with her parents till the institution of the suit and during all this period she was neither maintained nor marital obligations were performed. During her stay with husband, she attributed cruelty to him. Muhammad Akram, appellant, brought a counter-suit for restitution of conjugal rights and injunction, on 7th April, 1981. In counter-suit, Muhammad Akram averred that be donated golden ornaments of the value of Rs, 15,000 to his wife in addition to incurring of Rs, 20,000 in marriage. It was claimed that his wife lived with him for a period of a year and half when she left to meet her parents but thereafter she was restrained by her parents from living with the husband. The trial Court consolidated the suits. It dismissed the suit for divorce and allowed decree for restitution of conjugal rights. On appeal, the learned District Judge recorded his disagreement with the finding of the trial Court. It dismissed the suit of Muhammad Akram and allowed decree for divorce on the basis of `khula', subject to payment of Rs, 5,000 as compensation by assessing cost of ornaments given in gift by husband to the wife. The order was challenged by the husband as illegal and unwarranted by evidence on record, whereas HO. Majeed Begum expressed dissatisfaction with the order on account of fixing the liability in the sum of Rs, 5,000 to be paid to husband, as price of the ornaments.
5. Mr. Shahid Ahmed Rathore, the learned counsel for Muhammad Akram, appellant, assailed the impugned order on two counts :-
(1) That there was no cause to grant divorce by `Khula';
(ii) that the compensation assessed by the trial Court was misconceived as the wife was under an obligation to return all the ornaments given to her in gift by the husband at the time of marriage and not the value of such ornaments assessed prevailing at the time of marriage.
' He cited PLD 1959 Lab. 566, PLD 1968 Lah. 411 and PLD 1977 Azad J & K 67.
'6. The first objection pertains to absence of reason for seeking divorce by `Khulal. It is well- accepted that %hula' is permissible on satisfaction of the Judge that the spouses cannot live as such within the limits of Allah. Gulf in relationship between the parties, may be due to fault of either one on them but once it is expressed in terms of hatred and despise entertained by wife against husband, whereby chances of reconciliation are found completely eliminated, `Khula' is, obviously, enforceable. In order to resolve the objection, it is felt advisable to ruler to precedents. In Islamic history, two well-known precedents relevant to the period of Holy Prophet (peace be upon him) are the cases of Jamila and Habiba. It is reported that Jamila approached the Holy Prophet and addressed her complaint in the following manner :- "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 do not blame his religion or his morals but I fear heresy in Islam."
' The Holy Prophet (peace be upon him) resolved the proposition in the following fashion :- "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."
' In the second case, as revealed by Imam Malik and Abu Daud, it was laid down :- "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, Prouhet 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" and in others "fariqha". Both of them mean "divorce her."
In both the cases, it is found that the Holy Prophet (peace be upon him administered `Khula' on expression of hatred by wife against husband, without going into depth of reasonableness shaping attitude of the wife. On satisfaction that spouses could not live amicable and harmonious life, the were allowed separation on return of garden in first case and on return of whatever was given to Habiba by her husband, in the second case. It I discovered that the Judge was to satisfy himself that the attitude of wife was such that there was least chance of restitution of happy and harmonious life of the spouses and there was apprehension that the wife may not observe the limits ordained by God. It is noticed that the spouses who unite in the wedlock of marriage of free will, affection and by choice, their relations as such may strain at any stage of marriage sometime for genuine reasons and some time for entertaining ill-founded apprehensions. The relations of spouses ordinarily exists on mutual behaviour. So far as good behaviour to each other continues affectionate blended with mutual respect, loyalty and faithfulness, there is seldom a reason for suspicion or inhibition and disregard. Thus, the harmonious state of life may result in disharmony and dispute any moment for breach of one of the causes of happy life.
8. In the present case, it is evident from the pleadings and evidence of the parties that wife attributed serious allegations of cruelty, failure of husband to maintain her and performance of marital obligations. In her testimony, Mst. Majeed Begum disclosed that she had developed so much disrespect and hatred for the husband that under no circumstances, she could. Reconcile to restore harmonious and happy life. In reply to a question in cross-examination, she attributed the following words :- ' In addition to that, it was admitted by the husband that on separation of his wife, he contracted a second marriage. His second wife was living with him and there was a child as well from the second wedlock. It is disclosed that the parties are living in their neighbourhood, at a distance of 1U-15 yards. The presence of second wife in the house of her husband, may be a new cause for Mst.
Majeed Begum to nourish despise and contempt for the husband. Be as it may, it is safely borne out of the record that the wife cannot live with husband within the limits of God. The learned District Judge is nor found to have departed from the celebrated rules requisite for administration of 'Khula. The objection is, therefore, not sustained. The view finds support from Balgees Far/ma's case
(1) and the same is reproduced below :- "Let it not be understood that our answer to the question referred grants a right to wife to come to the Court at any time and obtain `Khula' if she is prepared to restore the benefit she has received.
There is an important limitation on her right of `Khula'. It is only if the judge apprehends that the limits of God will not be observed, that is, in their relation towards one another, the spouses will not obey God, that a harmonious married state, as envisaged by Islam, will not be possible that he will grant a dissolution. The wife cannot have a divorce for every passing impulse. The Judge will consider whether the rift between the parties is a serious one though he may not consider the reasons for the rift.
That the wife may go wrong if dissolution is not ordered is rather a reason for grant of dissolution for !Slain prefers divorce to adultery."
9. The second objection confines to return of ornaments given to wife as gift at the time of marriage by the husband. It was argued that Mst. Majeed Begum, in her testimony, admitted that she was given 5, to 6 Tolas golden ornaments as gift by her husband at the time of their marriage.
The suggestion was made that in presence of admission by wife, it was obligatory to return*, the ornaments in original for availing divorce by `Khula'. The contention was opposed by suggesting that the ornaments given as gift at the time of `Nikah', were not presently in possession of the white as she sold the period of her separation from her husband.
10. `Khula* is one of recognised kinds of divorce which is invoked b wife on offering compensation to husband for her release. `Khula' is defined at page 112 in Hedaya by Charles Hamilton as under :- "Khoola, in its primitive sense, means to draw off or dig up. La law it signifies an agreement entered into for the purpose of dissolving a connubial connation, in lieu of a compensation paid by the wife to
(1) PLD 1959 (W. P.) Lab. 566 ' her husband out of her property.-This is the definition of it in the Jama Ramooz".
It is evident from the aforesaid definition that divorce by `Khula' is ordinarily accompanied by compensation by wife to her husband. The divorce by 'Kbulai is generally resolved by offer made by wife to husband in the manner that she may return or repay to husband all gifts or part of it or even more and on acceptance of such offer by husband. But when offer is made voluntarily by wife and accepted by husband, `Khula' is permissible on completion of such offer and acceptance.
Contrarily, when a wife offers compensation and the same is not accepted by husband, the discretion is left with the Court to pronounce `Khula' by ordering return of gift or benefits received by wife from husband in consideration of marriage, provided Judge was satisfied that parties could not observe the limits of God to live a happy and harmonious married life.
10. It is already noticed in preceding cases that Holy Prophet (peace be upon him) asked Jamila to return the garden to her husband, when she offered more in addition to the garden, but the Holy Prophet said. ' No more, but you return the garden that he gave you." In the case of Habiba, she made offer to return whatever she was given by the husband. The husband was ordered to take back what he had given her to release her. In the first case, compensation was fixed by the Holy Prophet (peace be upon him), whereas in the second case, offer of compensation was made by the wife and the same was acknowledged by the Holy Prophet (peace be upon him). In the instant case, the wife invoked 'Khula' but made no offer of compensation ; rather she declined to return the ornaments to husband. On satisfaction of the learned District Judge. That the spouses could not live within the limits of Allah, he decided to order the wife to pay Rs, 5,000 as compensation for availing divorce by `Khula'. The amount was assessed as value of the ornaments prevailing at the time of marriage. It was objected by the learned counsel for the appellant that the District Judge was not vested with the authority to assess the value of ornaments and to order payment of the same to the husband. It was suggested that in case of administration of divorce by `Khula', husband was entitled to return of ornaments in original.. It is noticed that the present case is a novel case in the sense that the wife invoking `Khula', declined to return the ornaments, admittedly given to her by husband at the time of marriage. In the circumstances the matter was purely left at the discretion of the Court for its final settlement. Ordinarily, gift in the shape of ornaments received by wife was likely to be returned to husband. ' But this cannot be done in presence of absence of specification or ornaments and their weight. It is true that some of the ornaments were specified by husband but at the same time difficulty cannot be removed as the possibility of dispute of exact ornaments cannot be eliminated. The choice available to the Court is to fix the value of the ornaments and to order its payment to the husband. It is- correctly suggested that the value of the ornaments at present is much higher than the value prevailing at the time of marriage. In ca,e the present value is ordered to be returned, the wife shall have to pay more than Rs, 10,000. Contrarily, if the Court-Concludes that the respondent is entitled to the return of value of the ornaments, prevailing at the time of marriage, the value already settled by the learned District Judge was correct one. In well-considered view of this Court, as the ornaments are not likely to be returned for one of the reasons enumerated above, it would be fair to ask the wife to return her husband the value of gift, prevailing at the time of marriage. The reason for the opinion is that the husband actually paid consideration for purchasing ornaments, as such he departed with money to purchase the gift. As he paid consideration for the gift, ordinarily, he was entitled to obtain the same. It may be stated that the value of money at relevant time was higher than the value prevailing at present, but at the same time, the Court has to consider the collateral attending circumstances. The circumstances are that the wife being an orphan and not maintained during the period of separation, was found equally eligible to get maintenance allowance, from husband in presence of justification for living separate. However, the reason as stated by the mother of the wife at the bar, is that the ornaments were sold out to meet the expenses of litigation. The parties are pursuing the ciriclaim in the Courts of law for the last 3 years. Keeping in view the necessary expenses likely to be incurred in prosecution of the case, the statement made at the bar, cannot be lightly brushed aside. Thus, in view of the peculiar circumstances of the case, this Court is not inclined to record its disagreement with the learned District Judge. In Bakees Fatima's case the proposition received the attention of the Court whereby it was held as under :- "Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, I permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole on the property but the judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received. The jurisdiction of the Qazi to dissolve marriage in cases of ship(' is limited only by what is stated in the Qur'an, I. e. "if you fear a breach" which means that there is real discord between the parties, and in the case of `Khula' by the words "if you fear that they will not observe the limits of God". While effecting separation, the Qazi adjusts the financial matters so as to direct a partial or total restoration of the benefits received by the wife."
' The authorities cited by the learned counsel for the appellant, do not help him as the principle enunciated above, finds equal support in all the cases.
11. The result of the aforesaid discussion is that this Court is not persuaded to record its disagreement with the learned District Judge. The appeal filed by Muhammad Akram stands dismissed with costs. The counter-appeal filed by Mst. Majeed Begum is equally not found persuasive and it is also dismissed.