1. This Constitutional Petition calls in question judgment dated 22-11-1987 passed by XIVth Family Judge, Karachi South, whereby the first respondent- was allowed 'Khula'.
2. The facts leading to the filing of the case are that the petitioner was married to first respondent on 15-4-1984 at Multan. The spouses were related even before marriage. The parents of the first respondent are first cousin of the petitioner. The first respondent filed a suit against the petitioner for dissolution of marriage. It is alleged. In the plaint that during this period of married life, the petitioner always treated the first respondent with cruelty, having been habitually abusing and assaulting her physically and he made her life miserable and eventually his behaviour became intolerable. It is further alleged that the petitioner not only treated the first respondent with habitual cruelty but also refused to maintain her and failed to provide her daily necessities of life. It is the case of the first respondent that due to above-said behaviour of the petitioner and extreme incompatibility of temperament he eventually forced the first respondent to leave the residence and came and live with her parents in Karachi, where she is permanently residing. It is the case of the first respondent that the first respondent had developed such hatred towards the petitioner due to his behaviour that the petitioner cannot reasonably be expected to live with him any longer within the limits prescribed by Allah since forcing herself to live with the petitioner would amount to living in a hateful union. The petitioner resisted the suit and denied the averments made in the plaint. Family Court framed five issues which are as under:- "(1) Whether the defendant has paid the dower amount as alleged?
(2) Whether the defendant made the life of .The plaintiff miserable with cruelty of conduct?
3. (3)Whether the defendant has failed to maintain the plaintiff?
4. (4)Whether, We plaintiff is entitled for dissolution of marriage by way of Khula?
(5) What should the decree be?
5. The Family Court recorded evidence of the parties. Issue No.1 was decided in the negative. Issue No.2 was decided in the affirmative. Issue No3 was dropped. The Family Court held that the first respondent was entitled to succeed on ground of Khula and accordingly decreed her suit vide impugned Judgment.
6. Mr. Usman Ghani the learned counsel for the petitioner contended that a wife can obtain a divorce by Khula only on the condition that she restores the benefits received by her from her husband, the first respondent has, therefore, he restore the benefits received by her from the petitioner. The Family Court has ignored this aspect of the case. -He suggested that the case should be remanded for determination of the benefits, if any, received by the first respondent from the petitioner.
7. On the other hand Mr. Mohammad Jamil, the learned counsel for the first respondent submitted that the petitioner has not made a demand in his written statement.
8. I have heard the learned counsel for the parties and gone through the impugned judgment. I have also gone through the pleadings and the evidence adduced by them. I have to point out that the first respondent had pleaded in paragraph 6 of the plaint that "the plaintiff has developed such hatred towards the defendant to his behaviour that now the plaintiff cannot reasonably be expected to live with the defendant any longer within the limits prescribed by Allah since forcing herself to live with the defendant would amount to living in a hateful union". The petitioner denied the contents of paragraph 6 being false.
9. Khula is one of the recognised kind of divorce which is invoked by wife on offering compensation to husband for her release. 'Khula' is defined at page 112 in Hedayat by Charles Hamilton as under:- "Khoola, in his primitive sense, means to draw off or dig up. In law it', 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. This is the definition of it in the Jama Ramooz".
10. "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.
11. 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."
12. PLD 1967 SC 97 the Supreme Court held as follows:- "The next question is on what terms, such a decree should be granted to him. Unfortunately, in the trial Court, the question of terms was not gone into, on either side, and the trial Judge also failed to advert to this aspect of the matter. There is no material on the file, from which it can be ascertained how much money, if at all, the husband had given to the wife, on the occasion of the marriage, and on receipt of what compensation he would be willing to grant her Khula."
13. At page 148 the Supreme Court further held as under: "The instances of Khula, which have been cited above, show that the wife has to return the benefits of the marriage and illustrates that the wife has to refund no more than what she has received, for though Jamila was willing to give more than the garden given to her by her husband, the Holy Prophet said: "No, only the garden". It is a further check on the wife's exercise of the right of Khula that, as a general rule, she cannot retain the benefits, i.e. The consideration of the marriage, the same as the husband cannot take back whatever he has given to the wife in consideration of the marriage, if he divorces her, which is a corresponding restraint on his right. Therefore, it is necessary for the Court to ascertain in a case of Khula what benefits have been conferred on the wife by the husband as a consideration of the marriage, and it is in the discretion of the Court to fix the amount of compensation, as is indicated by the instances of Khula cited above:"
14. The case was remanded to the trial Court.
15. Mr. Mohammad Jamil cited the case of Mst. Shamshad Begum v. Abdul Haque alias Nawaz and 2 others reported as PLD 1977 Karachi 955. The facts of the case were that the petitioner filed a suit for dissolution of marriage on the ground of ill-treatment and in the alternative she prayed for divorce by way of Khula. The Family Court decreed the suit by way of Khula on the condition that the petitioner shall pay Rs.5,000 to the respondent through the Court within five months. The petitioner preferred appeal which was dismissed by the Additional District Judge. The petitioner filed Constitutional petition in this Court. A Division Bench of this Court held as follows:- "This is yet another illegality which has been committed by the learned Judge of the Family Court.
16. Although, consideration is a valid and even generally an essential requirement of Khula and such payment ordinarily is payable immediately or at an agreed time, the view expressed by Mr. K.N.
17. Ahmed, in his valuable and exhaustive treatise, "Principles of Muslim Law", at page 259, is that the failure of the wife to pay the consideration does not cancel the Khula but the husband shall be entitled to recover the same from the wife under the law or he may set off the same against any claim that she may have against him."
18. It seems to me that the parties were not aware of the consequences of a divorce by Khula and it is just and proper that the case should be remanded for determination of the benefits, if any received by the first respondent from the petitioner.
19. Accordingly Constitutional Petition is allowed and the case is remanded to the trial Court which shall decide the question of the benefits received by the first respondent from the petitioner and if it comes to the conclusion that the first respondent had received any benefits, it will order the first respondent to return them to the petitioner.
20. The pleadings of the parties are very vague and in all fairness, it seems to me that the parties should be permitted to amend the plaint and written statement if they so desire. I direct the parties through their counsel to appear before the XIVth Family Judge, Karachi South, on 15-1-1989. The learned Family' Judge is directed to given the parties an opportunity to give evidence on the E.
21. Question of benefits received by the first respondent from the petitioner. The learned Family Judge is directed to decide the same within two months from 15--1-1989. The Constitutional Petition is disposed of in the above terms with no order as to costs.
22. M.Y.H./M-753/K