MRS. KHALIDA RACHID, J.---Taladar, petitioner, through this Constitutional petition has challenged the judgment, dated 5-7-1994 of the learned Judge Family Court, Charsadda, whereby the suit filed by Mst. Roheeda, respondent No.1 for dissolution of her marriage with the petitioner has been decreed against her husband on the ground of `Khula'.
2. The brief facts giving rise to this Constitutional petition are that Mst. Roheeda, respondent-wife, instituted a suit against her husband- petitioner in the Family Court, Charsadda, for dissolution of her marriage on the grounds of cruelty and maltreatment and also recovery of Rs.18,000 as past maintenance allowance for three years at the rate of Rs.500 per month, Rs.14,000 as price of gold ornaments weighing `4-Tolas' and Rs.5,000 as price of her garments. In alternate she prayed for dissolution of her marriage on the ground of `Khula'. The suit was vehemently contested by Taladar, petitioner-husband, by filing written statement. On the pleadings of the parties, the following issues were settled:---
(1) Whether the plaintiff has got a cause of action?
(2) Whether the suit is time-barred?
(3) Whether the plaintiff is estopped to sue?
(4) What was fixed as dower and whether it was paid?
(5) When did the :plaintiff leave the defendant house and whether she was ousted by the defendant?
(6) Whether the plaintiff is entitled to a decree of dissolution of marriage on the grounds mentioned in para. 4 of the plaint?
(7) Whether the plaintiff is entitled to a decree of dissolution on the basis of Khula in the alternative as prayed for?
(8) Whether the plaintiff is entitled to a decree of recovery of money as prayed for in reliefand of the plaint.
(9) Relief.
After assessing the evidence produced by the parties in support of their respective claims and hearing the learned counsel for the parties, the learned Judge, Family Court, Charsadda, vide impugned judgment, dated 5-7-1994 granted a decree for dissolution of marriage on the ground of `Khula' refusing the remaining prayers of Mst. Roheeda.
3. It may be mentioned here that petitioner cannot call in question dissolution of marriage, as appeal under section 14 of the 'West Pakistan Family Courts Act, 1964, excepting ground mentioned in section 2(viii)(D) of the Muslim Marriages Act, 1939, which relates to the disposal of the property of the wife preventing her from exercising her legal right over it, is not maintainable, hence, the present writ petition.
4. We have heard the arguments of Mr. Fazal Ilahi Khan, Advocate, for the petitioner-husband and examined the documents annexed with the writ petition.
The learned counsel appearing for the petitioner assailed the judgment of the learned trial Court on the ground that dissolution of marriage was against the prescribed course of law and `Shariah'.
He argued that there was no sufficient evidence made available by the respondent-wife to prove that her husband-petitioner was an addict and was a man of bad character and that the learned trial Court rightly concluded as such while refusing her prayer for maintenance and dower and also the dissolution of marriage on the ground of cruelty but the learned Court erred in dissolving the marriage on rule of `Khula'. He agitated that the marriage of parties on the rule of `Khula' could only be dissolved with the consent of the spouses.
5. These arguments of the learned counsel for the petitioner-husband are totally misconceived and baseless. No such consent of the husband is required in case of `Khula'. The wife, under the Muslim Law, is entitled as of her right to claim `Khula' despite the unwillingness of the husband to release his wife from the matrimonial tie if she satisfies the Court that there exist such circumstances in which the spouses could not live within the limits of Allah. Where the dissolution takes place with the consent of the parties it is called `Mubarrat' and in such a case no reference to Court is necessary. But where the husband refuses the right of the wife for separation by `Khula' the dispute has to be referred and adjudicated upon by the Court where the wife gets herself released from the matrimonial tie on restoration of what she has received from her husband. Maulana Abu- Al-Aala Moududi in his book, "Haqooq-uz-Zojain" has very elaborately discussed the circumstances under which the wife can claim `Khula'. He, referring to the verse of the Holy Qur'an, described `Khula' as right of wife which she can claim by way of `Khula' with a condition if she satisfies the Court that harmonious marital status/relation as ordained by Allah will not be possible. In such circumstances she has also to return of what she has received from her husband.
6. Before Islam the wife had no such right of divorce. Even the Hebrews and Christians did not recognize the right of divorce to their women. It is only after the Dawn of Islam when the right of divorce by way of `Khula' was given to the women. Islam being a `Deenul Fitrat' gives equal opportunity to man and woman. It is laid down in the Holy Qur'an that "They (women) have rights similar to those (of men) over them in kindness and men are a degree above them in status. Allah is Almighty (all powerful). (2:228)". Though Islam preaches equality amongst husband and wife but their rights and obligations are different. The Holy Qur'an ordains: "Men are maintainers of women with the bounties which Allah has bestowed more abundantly on some of-them than on others and with what they may spend out of their possession." (4:34) In return the wife herself is responsible for the care of her home and welfare of her family. The best role a woman can play in keeping the marital tie intact and strong is to recognize her husband as person responsible for the running of the affairs of the family and she obeys him even if his judgment is not acceptable to her in particular matter provided he does not go beyond the limits of Islam. It is recognition of the role of husband as the head of the family unit and loyalty of both husband and wife to a higher law, the Shariah. The Prophet (peace be upon him) has observed, "The best woman is she who when you see her you feel pleased and when you direct her she obeys. She protects your rights and keeps her chastity when you are absent." Thus her role in the home is vitally important as to the happiness of husband and for physical and spiritual L development of the children. Her endeavour must be to make her family life sweet and joyful and home a place of security and peace. The harmony in home is so precious to Allah that He instructs men, "Live with them in kindness, even if you dislike them, perhaps you dislike something in which Allah has placed much good." (4:19).
7. Allah requires same high standard of morals from men as he does from women. He has imposed the same legal penalties on man and woman for the infringement of the moral laws. So Allah gives full protection to the rights of women, "And give their dowery willingly to women (as an obligation).
If they, of their own accord, remit a portion of dowery you may enjoy with pleasure:" (4:4). In forming the rights and privileges of man and woman a parallel is maintained and psychological and biological differences are considered, therefore, a man is strictly forbidden to misuse the powers given to him as head of the family so that the relation of husband and wife may not turn into those of master and servant. As a head of the family he shall provide all the opportunities to woman under which she develops her natural attributes and instincts for the development of the society.
By developing her natural attributes, it does not mean that she takes over the position of a man rather she is encouraged to be a useful member of a society and not a deprivated third class citizen of it, as it used to be before Islam whereafter the death of the husband she used to become the property of the eldest son of her husband from his other wives. On the one hand God gives higher position to the man as head of the family and on the other a woman is incharge of his house. Holy Qur'an commands: "Men are incharge of women, because Allah hath made the one of them to excel the other, and because they spend of their property (for the support of women).
(4:34). It remains her property even if she is divorced by way of "Talaq". But in case of `Khula' i.e., divorce at the request of the wife, she may be required to pay back all or part of the dower.
8. Allah gives right to a man to divorce his wife by way of `Talaaq'. p Similarly, He has also made provisions for the woman to be able to release I herself from her husband by way of `Khula'.
"Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take from women out of that which ye have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if ye fear that they may not be able to keep the limits of Allah, in that case it is no sin for either of them if the woman ransoms herself. These are the limits (imposed by) Allah.
Transgress them not. For whoso transgresseth Allah's limits: such are wrongdoers." (2:229).
9. It is obligatory that when a girl/woman is married, bridegroom gives her dower (Mehr) which may be of any value agreed upon. This dower is not like an old European dowery which was given by father to a daughter on her marriage and hence it became the property of the husband nor is the dowery of the African bride's price which is paid by the bridegroom to their fathers in the form of payment and compensation. The Muslim dower is a gift from the bridegroom to the bride and it becomes her exclusive property.
"It is not lawful, for you to take anything, you have given them in dowery." (2:229).
10. All the prohibitions and limitations prescribed here are for the interest of good and honourable lives of the spouses and in the interest of clean and honourable social set up to fulfil the Islamic concept of life without public and private scandals. But if there is any fear that in safeguarding her economic rights, her very freedom as a person may suffer. Supposing husband refuses to grant divorce and possibly treats her with cruelty then what would be the relief for a woman? In such exceptional cases it is permissible to return some of the material benefits to the husband but the decision for the sake of equity lies with the impartial Qazi/Judge. A separation of this kind is called `Khula' which is essentially to protect the equitable rights of women. In this case the Qazi/Judge first of all would try to ascertain the extent of dislike and h incompatibility between spouses and in the event Court is fully satisfied that they cannot live within the limits of Allah, it shall fix as compensation anything that it considered proper or deemed fit has to accept and separate (divorce) his wife. The jurists are generally of the opinion that the compensation should not exceed the dower/Mahr given to the wife. After `Khula' the spouses have the right to remarry with their mutual consent but husband forfeits his right of F remarriage. Since the breakdown of the marriage is brought by the wife, therefore, period of waiting i.e., `Iddat' is different Abu Daud and Majah are of the view that the Holy Prophet (peace be upon him) prescribed only one monthly course. .
11. So, extreme dislike and incompatibility to live together can be the ground for `Khula' as long as Qazi/Judge is satisfied that both are unable to live within the limits of Allah. View taken by late Kaikous, J. In Bilqees Fatima's case PLD 1959 Lah. 566 is that the relevant verse of Holy Qur'an gives the right of `Khula' to the wife subject to the limitation as prescribed by Allah. In often quoted cases of Jamila and Habiba, Muhammad (peace be upon him) administered `Khula' to the said two ladies from their husband Sabit Bin Qais without even getting any detail or reasonings. Though Allah has conferred right of divorce on a man and that of `Khula' on a woman yet Holy Prophet (peace be upon him) says that most detestable of lawful things in Allah's view is divorce (Abu Daud). "Woman asking `Khula' would be deprived of fragrance of paradise". (Termizi). So, the right given to woman of obtaining divorce from her husband is not an absolute right but her controlled right, success of which depends upon Qazi/Judge.
12. While examining the case of the petitioner, after perusal of the record, it is clear that respondent wife, Mst. Roheeda,, categorically prayed for dissolution of her marriage with the petitioner by way of `Khula' if his prayer of G divorce on the ground of cruelty is dismissed. The trial Court, holding that the parties could not live within the limits as ordained by Allah, rightly granted dissolution of her marriage on the rule of `Khula'.