' By invoking constitutional jurisdiction of this Court Mst. Shagufta Jabeen daughter of Sheikh Muhammad Din (wife) has raised a question of first impression and of far reaching consequences.
The petitioner was married to Muhammad Tariq in the year 1981 at Peshawar. On the very first night of the wedlock the spouses could not adjust and started quarrel on one pretext or another. The wife was allegedly not treated properly and was repeatedly subjected to physical violence by the husband. The wife left the abode of her husband on 13-2-1982 and started living with her parents since then.
2. On 15-11-1983 Muhammad Tariq, the husband filed a suit against his wife Mst. Shagufta Jabeen before the Family Court for the grant of a decree for the restitution of conjugal rights. On 8-1-1984 the wife Mst. Shagufta Jabeen also instituted a suit against her husband for dissolution of marriage and payment of dower of Rs.20,000, half share of the house mentioned in the dower deed, twenty tolas of gold and Rs.300 per month as maintenance. Being earlier in time proceedings in the suit for restitution of conjugal rights was ordered to continue. Both the suits were consolidated by the Judge Family Court on 13-5-1984 and on the pleadings of the parties the following fifteen issues were framed:-
(1) Whether the plaintiff has a cause of action?
(2) Whether the suit is mala fide?
(3) Whether the suit is illegal?
(4) Whether the plaintiff is estopped to bring this suit by his conduct?
(5) Whether the suit is incompetent in its present form?
(6) Whether this Court has got jurisdiction to entertain the present suit?
(7) Whether the defendant (wife) has been treated with cruelty by the plaintiff?
(8) Whether the defendant (wife) is entitled to dower of Rs.20,000?
(9) Whether the defendant (wife) is entitled to gold weighing 20 tolas?
(10) Whether the defendant (wife) is entitled to Rs.300 PM as maintenance with effect from 13-2- 1982 till disposal of suit?
(11) Whether the defendant (wife) is entitled to house-holds articles?
(12) Whether the defendant (wife) is entitled to 1/2 share of the house mentioned in the dower deed?
(13) Whether the defendant (wife) is entitled to the decree of dissolution of marriage?
(14) Whether the plaintiff is entitled to the decree of conjugal rights?
(15) Relief.
The learned Judge Family Court by judgment and decree dated 7-1-1985 decided issue No.8 in the affirmative while issues Nos.9,10 and 11 were answered in the negative. On issue No.12 the wife was held entitled to 1/2 share of the house mentioned in the dower deed. Issues Nos.2 to 5 and 7 were decided in the negative. Issue No.1 was answered in the affirmative. As a result the husband was given a decree for restitution of conjugal rights, whereas the suit of the wife with regard to dissolution of marriage was dismissed but her suit with regard to recovery of Rs.20,000 and possession of half share of house both in lieu of dower was decreed. Claim for maintenance and return of dowery articles was dismissed.
3. Both the husband and wife assailed the judgment and decree by filing separate appeals before the District Judge, Peshawar. The husband questioned the right of the wife to receive the dower of Rs.20,000 and half share of the house and wife challenged the decree for restitution of conjugal rights; both the appeals were disposed of by a single judgment dated 26-6-1985. The appeal filed by the wife was accepted and the marriage dissolved by the exercise of the right of 'Khula' as according to the learned District Judge on account of civil and criminal litigation between the parties there was not the remotest chance of the couple living within the limits prescribed by God.
The husband feels satisfied with the judgment, whereas wife, as mentioned earlier, is aggrieved from the decree of dissolution of marriage on the basis of 'Khula'. It was vehemently contended on her behalf that decree terminating the marriage by way of 'Khula' could have only been granted if she was willing and offered to seek divorce by abandoning the benefits received from the husband at the time of marriage. The learned District Judge, the appellate Court, was not competent to dissolve marriage on the basis of 'Khula' without her asking for it. The moot question that calls for determination is whether a marriage can be dissolved on the basis of 'Khula' by Qazi (Judge under the Family Court Ordinance) without the approval and consent of the wife. According to Hidaya, 'Khula, in law signifies an agreement entered into for the purpose of dissolving a connubial connexion, in lieu of a compensation paid by the wife to her husband out of her property. Further it has been mentioned that when the compensation is thus offered and accepted, a single divorce irreversible takes place, in virtue of 'Khula' and the woman is answerable for the amount of it, because the Prophet has said that 'Khula' effects an irreversible divorce. If a husband offers to divorce his wife for a compensation and she consents, divorce takes place and she becomes answerable for the compensation. The celebrated judgment on the point is that of Mst. Bilqees Fatima v. Najmul Ikram Qureshi, PLD 1959 Lah.
556. It is laid down that a judge can dissolve the marriage without the consent of the husband on the basis of 'Khula' if the circumstances are such that there is apprehension of the spouses not observing the limits of God. The judgment refers to Sura Baqr and two oft-quoted instances of 'Khula' ordered by the Holy Prophet. Both the cases relate to single person Sabit Ibne Qais. Verse No.229 of Sura Baqr which is basis of the right of 'Kh ula' runs: - "The verse of the Qur'an which is the basis of the right of Khula is Verse No.229 of Sura Baqr, which runs--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 exceed the limits of Allah, these it is that are the unjust."
' In the case of first wife of Sabit Ibne Qais Jamila, the wife came to the Prophet and lodged the following complaint: "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 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 this 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. Both Imam Malik and Abu Daud stated as follows:- "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 both the above referred well-known instances that took place during the life of Holy Prophet it is pertinent to note that the Prophet first obtained the consent of the wife to return the benefits she had received from the husband and thereafter the husband was asked to divorce the wife. It would show that the divorce by 'Khula' can only take place if the wife desires so and is willing to divest herself of the benefits received from the husband at the time of marriage.
4. The other renowned judgment on the subject is Mst. Khurshid Bibi v. Baboo Muhammad Amin reported as PLD 1967 SC 97, wherein status of marriage among Muslims has been held to be in the nature of a civil contract which has undoubtedly spiritual and moral overtones and undertones, but legally, in essence, it remains a contract between the parties which can be the subject of dissolution for good cause. In this respect Islam, the Din-al-Fitrat, conforms to the dictates of human nature and does not prescribe the binding together of a man and woman to what has been described as "holy wed-lock". The husband is given right to divorce his wife, similarly the wife is given the right to ask for 'Khula' in cases of extreme incompatibility. At page 139 the august Court has laid down.
"The word "Khula" literally means to put off, as a man is said to Khula his garment, when he puts it off. Verse 187, Chapter II of the Holy Qur'an recites "you are garment or apparel for them and they are garment for you", meaning that the husband is a garment for the wife and vice versa. 'Khula', therefore, would mean the putting off or doffing of the cloak of marriage. According to the Kifaya, Volume II, Page 278, Khula means to put off as a man is said to Khula his garment, when he puts it off. According to Durrul Mukhtar (at page 256), it means in law demission or laying down by a husband of his right and authority over his wife for an exchange to take effect on her acceptance by means of the word 'Khula' and it is sometimes validly effected by the words of sale and purchase. Its condition is that of talaq or repudiation, and its effect one irrevocable repudiation.
According to Hedaya (page 112 of Hamilton's Translation by Grady), relied upon by the learned counsel for the respondent, "Khula" signified an agreement between the spouses for dissolving a connubial connection in lieu of a compensation paid by the wife to the husband out of her property".
5. According to Durrul Mukhtar English Translation by B. M.Dayal, page-244 "Khula" literally means 'removal'; it is pronounced as Khula when it is used to signify the removal of matrimonial bond, and as 'khala' in all other cases. As is mentioned in the Bahrur-Raik, in law it means getting rid of the ownership by marriage".
Khula is not 'Talaq' in true sense of the word but separation by putting an end to matrimonial bond and rights. It was observed' in Khurshid Bibi's case: "There are good reasons for the view that Khula is separation and not talaq, as the right of the husband to take back the wife after Khula, does not exist, as it does in the case of Talaq-i-raja'i and the period of Iddat is different in the two cases".
' In his treatise "Faruq-al-Zawaj-fi-Al-Mazahibal Islamia by All Khafif-Egypt-page 135 Margin" reproduced at page 127 of the Supreme Court judgment, the author has observed.
"Does it not follow from this Hadith-i-Sahih the hadith regarding (Sabit b. Qais' wife) that the Qazi has the right of ordering separation by Khula among the spouses when the wife takes her dispute with the husband to him and she is unable to tolerate his enmity and in such conditions that their mutual relations cannot endure in their present state and she is unable to maintain the limits ordained by Allah, with him? Then he (the Qazi) shall order their separation by khula on return of the mehr given to the wife by the husband. If they both agree, well and good, otherwise the Qazi will decide between them and will impose his decision on tiem, when the wife is agreeable to it but the husband is refusing to accept it". (the underlining is ours).
6. From all that has been referred to hereinbefore it is crystal clear tnat Qazi is not competent to dissolve marriage on the basis of 'Khula' without its demand by the wife and her consent to part in favour of the husband the benefits received from him. In the case in hand the learned District Judge dissolved the marriage on the basis of 'Khula' without the consent of the wife. We, therefore, accept the petition and set aside the consolidated judgment dated 26-6-1985 of the learned District Judge, Peshawar in both the appeals Nos.7/FC of 1985 and 8/FC of 1985. The learned District Judge, the appellate Court shall decide the appeals afresh in the light of our judgment after giving due notice and hearing the parties. There shall be no order as to costs.