1. JUDGMENT SHAFI MOHAMMADI, J.- This Judgment will dispose of C.Ps. 73/93, 112/94/.88\94 85/94.
2. 40/95/,50/95,5/95, and 43/95 as they contain a common point that decrees of "Khula" granted to wives without consent of their husbands ait unlawful. The learned advocates, appearing for the petitioners (husbands) sought strength from decrees of religious decreers known as Moulanas or Muftis. Although these decrees were particularly based upon the books of Fiqah (Jurisprudence) of a specific school without any reference from the Holy Quran or the Sunnah of the Holy Prophet (peace be upon him) yet it was claimed that view expressed by the Courts, which view is contrary to the view expressed by the decreers, was un-islamic. Hence .These petitions on the basis of "difference of opinion" between the views of religious decreers and the views expressed by Courts.
2. Spirit and secret of erudite cogitation embodied in "difference of opinion" remained crested distinction of "Religion of Islam" as well as fountain of blessings for believers because quality of thinking is symbolical characteristic of every living nation. But the same "difference of opinion" becomes foundation of curse and malevolence when it is clutched by acolytes of establishmentarians on account of their affiliation and blind following of non-prophet individuals by believing or treating them un-questionable religious authoritarians. This type of religiosity never embraces religious virtuousness radiated by the Holy Books or reflected by consecrated sayings of Prophets (Peace be upon them) but only sows seeds to grow hated sectarianism among simple hearted and simple minded believers to keep them mentally chained in the prisons of doubts. In such situation, people always look towards courageous judiciary to get them free from the spell of sectarianism to promote unity and love in place of disunity and hatred.
3. From among the muslim personal laws, issue of "khula" was chosen by now and then to shatter the dignity, respect and confidence of the judiciary in .The eyes of people particularly by the religious decreers who give an impression that religion of Islam is their exclusive fief and the Judges of the Superior Courts know noting about Islam.
4. It may be necessary to point out that in the present age supporters of orthodoxy consider it to be the part of their religious duty&pose other sects and atheists treat tetratheism as progressiveness but inspire of the extremities of Orthodoxy atheism, both groups surprisingly and deploringly are always found to be hands and solves and hands in had with one another against erudition and realism expressed by our judiciary.
3. After the judgment in the case of Mst. Khurshid Bibi Vs. Baboo Mohammad Amin reported in PLD 1967 S.C.97 on the issue of Khula which is the most exhaustive and elaborate, there was no need of any other judgment if certain self-styled muftis (hereinafter referred to as decreers/religious decreers) had not stated that: Urdu The in lines, if translated, may run as under: "The decree issued by the Court on the Judgment of Khula is invalid in Shirah (of Islam). Your were is still in your matrimony. If someone got her married with someone else, it would amount to adultery and not matrimony".
5. Almost similar words were used by several other decreers, when any questionnaire was sent to them. It may be advantageous to reproduce herein under one of the questionnaire sent by a questioner to a decreer which reads as under: Urdu These lines, if translated, may read as under: "What is said by the doctors of law and religion and decreers of strong Shariah regarding this issue?' Whether decree of khula by Court without consolation and consent of husband is validly warranted or not?
6. And the decreer, on the strength of several books including "Mabsoot, Fatawa- Alamgiri, Durrul- Mukhtar etc, answered the qestionaire as reproduced in the beginning of this para. It is important to point out that neither the questioners seek decree on the strength of the Honly Quran or Sunnah of the Holy Prophet (peace be upon him) nor the decreers refer these sources of Islam in their decreers. For example, the said question could be formulated as under: "what has been stated in the Holy Quran and the Sunnah of the Holy Prophet (Peace be upon him) about Khula"?
7. And even if the question was not so framed, there was no bar on the decreers to base their decrees on the Holy Quran or the Sunnah of the Holy Prophet (Peace be upon him . Hence presumption can be drawn that neither the questioners nor the decreers had an intention to get the issue decided oh the basis of main sources of Islam.
8. So far as the books referred in most of the decrees issued by decreers are concerned, they belong mostly to Hanafi School of Jurisprudence although few Fatwas also contain references of certain books which relate to other Schools of Jurisprudence.
9. The learned advocate, in support of their contention also brought before this bench an article written by one of the famous decreers. The gist of that article was embodied in the following words: Urdu These lines, if translated into English, may read as under: Form of Khula is this that woman should offer some (of her) holding as redemption to get herself released from -her husband's prison of matrimony and the husband, on accepting the offer, may release her from (his) prison of matrimony."
10. The essence of these lines needs no comments because they speak themselves to show status of women in the eyes of a specific class, of religious sect.
4. With all my praises for the learned advocates appearing on behalf of "husbands" in the petitions in hands, I have the least doubt to believe that if the learned advocates had gone through the famous four judgments on this issue reported as (i) Mst Umar Bibi v.
11. Muhammad Din Acaps 1945 Lahore 51 (ii) Mst. Sayeeda Khanum V Muhammad Sami PLD 1952 Lahore 113 (i.e) Mst Bilqis Fatima v. Najmul Ikram Qureshi PLD 1959 (W.P) Lahore 566 and (iv) Mst.
12. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 S.C. 97 they would not have relied upon the views expressed by certain decreers or articles written by them.
5. However 1 consider it necessary to revive summarily the judicial history of main verdicts, as referred above, with references to certain important facts and the sources relied upon by the Hon'ble Judges at the time of pronouncement of those Judgements.
13. The case of Mst. Umar Bibi v. Muhammad Din deported in AIR 1945 Lahore 51 came before the Lahore High Court after two different suits for divorce were decreed by two different trial Courts but on appeal the decisions of the trial Courts were reversed by the District Judges. This judgment of the High Court was authored by Abdul Rahman for the Division Bench comprising of Harries, C.J.
14. And Abdul Rahman J. The common point which had led the trial Courts to decree the-suit was that the plaintiffs (wives) had begun to hate their husbands and that it was not possible for them to live with the latter at any rate with peace and comfort, It had been contended that divorce could be granted on the ground of incompatibility of temperaments between the spouses. The two questions to be decided by the High Court in that case were as under:
(1) "Whether a khula divorce could be granted by the British Indian Courts at the instance of were even if her husband was not willing so to do ?
(2) that in the event of a decision that khula divorce could not be granted by the courts, could a divorce be granted under the Muslim Law solely on the grounds of incompatibility of temperaments, dislike or even hatred found to have been aroused in the min^of the were either justifiably or without any justification ?
15. The learned Division Bench, after giving references of few books reached the following conclusion: "These authorities leave no room for doubt that in cases of khula, Mubaraat or ordinary talaq it is a husband or a person (including the were herself} who has been authorised by the husband who can effect a khula divorce and that it is not possible for a Qazi or a Court to do so (Khula) in virtue of the powers vested in either of them,. The position taken by one of the trial Courts that the khula could be given by the Court independently of the husband's consent cannot, therefore, be accepted."
16. In reaching such conclusion, the learned Division Bench basically relied upon:
(i) Jama Ramooz (ii) Hedaya (i.e) Durr-ul-Mukhtar (iv) Kifayah (v) Inayah (vi) and Umdutul Qari, a commentary on Sahib-ul-Bokttari.
17. There is also mention of Baillie's "Digest of Muhammadan Law" containing reference of Dur-ul- Mukhtar, Kifayah and Inayah as well as Fath-ul-Bari, another commentary on Sahih-ul-Bokhari. Out of these books, "Umdatul-Qari" was written by Imam Aini who is one of the greatest doctors of the "Hanafi School" of Jurisprudence. Besides the commentary on "The Bokhari", he also wrote commentary on "Hidaya" named "Al-Benaya (Note: This book would be referred in some other paragraphs in the Judgment). It may not be out of place to mention here that although there is mention of few verses of the Holy Quran such as verse 35 of Sureh IV regarding interpretation of word "Hakam" and one Hadith related to the divorce of Jameela were of Sabit-Bin- Qais besides certain commentaries yet they were taken into consideration to support the views radiated from the books of specific school of jurisprudence which neither possess the status of the Holy Quran nor of Ahadith of the Hoy Prophet (Peace be upon him).
6. The Judgment in the case of Mst. Sayeeda Khanum Vs Muhammad Sami PLD 1952 Lahore 113 (FB.), if studied minutely given an impression that it was basically relied upon (i) Muhammadan Law by Syed Ameer Ali, (ii) Muhammadan Law by Tayabji (i.e) The Religion of Islam by Muhammad Ali and his commentary on the Holy Quran. This judgment contains discussion of certain Arabic words such as "Hakam", Shiqaq and Nushuz used in the Holy Quran besides mention of few Ahadith according to which separation of women from their husbands was treated unappreciabe, but a bare perusal of those Ahadith shows that they have nothing to do with the issue of "Khula".
18. Moreover they do not support the view of Hanafi that "Khula" can take place only when it is consented by husband. The impression redated by these Ahadith is that divorce be discouraged.
19. Main portion of this judgment is reproduction of several paras from the learned judgment of Mr. Justice Abdul Rehman's in the case of Umar Bibi (supra) and nothing new was brought except approving the views expressed in the Umar Bibi case.
7. The Judgment in the case of Mst. Bilqis Fatima v. Najm-ul-lkram Qureshi (F.B.), is perhaps the first judgment which was relied upon verse No, 229 of Surah 2(AI-Baqr) and Hadith of the Holy Prophet (Peace be upon him) related to the case of Jamila were of Sabit Ibn-i- Qas as well as the cases decided by Caliphs of the Holy Prophets (peace be upon him). Besides the above, the full bench also relied upon several other scholarly works such as Haqooq-uz-Zaujain by Moulana Abul-ala- Maudoodi, Religion of Islam by Muhammad Ali and his commentary on the Holy Quran.
20. Muhammadan Law by Syed Ameer Ali and Commentary on the Holy Quran by Moulana Abul Kaiam Azad regarding interpretation of "Khula" on the strength of different verses. On the basis of detailed discussion, the views expressed in the cases of Mst. Unar Bibi and Sayeeda Khanum (Supra) were dissented from. All those points touched in the dissented judgments were discussed to some retent in detail. The opinion drawn in the said judgment was contrary to the views possessed by Hanafi School of Jurisprudence. This judgment was decided on 30 th March 1959 and it ruled the field of judiciary without any opposition till this issue was taken up by the Supreme Court on 12th October'1966 in the famous case of Mst. Khurshid Bibi (Supra). The contrary contentions of the lamed advocates for the contesting parties were stated in the judgment as under: The learned advocate, appearing on behalf of Mst. Khurshid Bibi (were) urged that: "Under Muslim Law, the were is entitled to Khula as of right if she satisfied the conscience of the Court that it will otherwise mean forcing her into a hateful union. Reliance was placed on Mst.
21. Balqis Fatima v. Najmul Ikram Qureshi PLD 1959 Lahore 566.
22. While the learned advocate, appearing on behalf of Baboo Muhammad Amin contended that: - "Among the followers of the Hanafi sect, to which the parties in this case belong, the view prevails that the consent of the husband, to the grant of khula, is absolutely necessary and the Court cannot decree "Khula" without such consent. Reliance was placed on the cases of Mst Umar Bibi vs. Muhammad Din AIR 1945 Lahore 51+ILR (1945) 25 Lahore 542 and Mst. Sayeeda Khan was v.
23. Muhammad Sami PLD 19. Lahore 113.
24. It is thus evident that main judgment with contrary views were before the Hon'ble Supreme Court besides this reality that the controvertists belonged to the same sect. After detailed discussion, the Hon'ble Supreme Court reached this conclusion that: "The husband is given the fight to divorce his were, though of course, arbitrary divorces are discountenanced. There is a saying of the Prophet to the effect that "the most detestable of lawful things in Allah's view is divorce"(...... Urdu About Dawood). Similarly, the were is given the right to ask for khuls in cases of extreme incompatibility though the warning is conveyed by ahadith against too free exercise of this privilege, one of which says that women asking for khula will be deprived of the fragrance of paradise (Trimizi)................... ..Urdu............ The warning both to man and woman in this regard, is obviously placed on the moral rather than the legal plane and is not destructive of their legal rights.
25. The Quran also declares: "Women have rights against men, similar to those that the men have against them, according to the well-known rules of equity" ........ Urdu...... It would, therefore, be surprising if the Quran did not provide for the separation of the spouses, at the instance of the were, in any circumstances. The Qur'an expressly says that the husband should either retain the were, according to well-recognised custom Urdu "(Imsak-un-bil-maroof or release her with grace "
26. Urdu " (Tasree- hun-bi-Ahsan). The word of God enjoined the husband not to cling to the woman, in order to cause her injury " Urdu Another hadith declares:- Urdu Lazarar-un-wa-la-zarar-ul- Islam) "Let no harm be done, nor harm be suffered in Islam". In certain circumstances, therefore, if the husband proves recalcitrant and does not agree to release the woman from the marital bond, the Qazi may well intervene to give redress and enforce the Quranic injunctions. ....... "It would be more consistent, in my humble opinion, with the letter and spirit of the Qur'an which place the husband and the were on an equal footing, in respect of rights of one against the other, to construe this incidents a meaning that the person in authority, including the Qazi, can order separation by khula even if the husband is not agreeable to that course. Of course the Quranic condition must be satisfied that it is no longer possible for the husband and the were to live together in harmony and in conformity with their obligations."
27. As every decision of the Hon'ble Supreme Court of Pakistan is binding upon al other Courts in Pakistan under Article 189 of the Constitution of Islamic Republic of Pakistan, therefore, this bench is constitutionally bound to follow them in accordance to the spirit of the observations made in a case reported as Abdul Majid and another V. Qazi Abbas Hassan Shaft in 1995 SCMR 429 by the Hon'ble Chief Justice Sajjad Ali Shah authored on behalf of a bench of the Supreme Court, other Judges being Saiduzzaman Siddiqui, Fazal Illahi Khan, Muhammad Munir Khan and Irshad Hassan Khan, JJ. The observations read as under: "A new trend is noticed that after conclusion of proceedings in this Court, aggrieved party either directly or through someone else starts fresh round of litigation on the same subject-matter with the intention of defeating the final adjudication by this Court which is disapproved and is to be discouraged with maximum emphasis. It is held by this Court that resort to civil litigation questions already concluded in the previous round of litigation giving rise to fresh frivolous and vexatious litigation is not to be permitted to go unnoticed. Reference can be made to the case of Muhammad Shafi and another v. Attaullah and others (1984 SCMR 1124).
28. Article 189 of the Constitution envisages in unequivocal terms that decision of the Supreme Court deciding a question of law is binding upon all other Courts in Pakistan. This Court takes very serious if judgment of this Court is not implemented or its implementation is .Delayed by contrivance of frivolous litigation. In support of the proposition reference can be made to the case of Ashiq Hussain alias Muhammad Ashraf v. The State (PLD 1994 S.C. 879)
29. Hence decision of the Hon'ble Supreme Court on the point of "khula" in the case of Mst. Khurshid Bibi (supra) has to be followed by this bench too. Therefore all these petitions merit dismissal and they are accordingly dismissed with no order as to costs.
30. 8(a). "Laa Ikrahaa Fiddeen- Urdu (mean No compulsion in Religion) is the universal principle of the Holy Quran (2:256) but according to the religious decreers if any husband pronounces divorce under pressure, compulsion or torture; the were stands separated.
31. Similarly Allah and His Prophet (peace be upon him) inprecated the hired actors who perform the shameless act of Halala but the religious decreer issue the decree for Halala is such manners as it is a pert of Shariat. But if a competent court of law grants separation to a were by way of Khula and the lady marries with another1 person then these decreers declare separation to be invalid and the marriage to be adultery.
32. No doubt the courts cannot declare the views of such decreers as Urdu on account of Article 20 of the Constitution of Islamic Republic of Pakistan but the hands of courts are not tied to protect their on honour and dignity besides protecting the rights of those poor wives who are granted Khula by the competent Courts I would have acted upon the advices of my several learned brothers in Chambers if I had not come across the destructions and auction of grandeur possessed bv respectable families besides crucifixion of modesty by hired sexists the alter constructed with the bricks of decrees made in the kiln of sectarianism uinl'if I had not found myself in a condition which has been reflected in the following couplet: Urdu (i.e.. I never believed in misfortune till I saw the burning- houses .In pouring rains), In such circumstances it would have amounted to criminal silence on the part of the , Court if 1 had remained spectator over such painful situation.
33. (b). I have no doubt at all that a were is entitled to demand divorce or separation on several grounds such as (1) missing husband, (ii) want of maintenance, (i.e) imprisonment, (iv) non- performance of marital obligation, (v) impotency, (vi) mental or body disease (vii) option of puberty, (viii) cruelty etc., besides demanding divorce or separation as of her right on any reasonable ground permitted by Islam including Mubaraat of Khula. The law of divorce or separation can be easily understood only after going through the following very of Holy Quran:
(i) Verses 228-232,236,237,and 241 of Surah II (til baqra)
(ii) Verse 35 of Surah IV (un-nissa)
34. (i.e) Verse 49 Surah XXXIII (Ai-Hizab)
(iv) Verses I & 2 of Surah LXV (Itlaq)
35. As the self-styled decreers of specific School of Jurisprudence have alleged that views expressed by Courts on issue of Khula is influenced by moder westernized influenced society; And as the said allegation, in my view is totally based on misconception, if not based on mala fide intention; And as the Judges of OF superior judiciary are muslims, with few receptions, who consider these allegations to be baseless; And as the decreers have termed the marriages of dies, after the decree of khula through courts without consent of husband, to be adultery by using the words "Bad Kara and Haram Kari; And as the decreers have tried to pollute the atmosphere of our society to concreate doubts against the superior judiciary; And as the women after the is marriage have been treated j"prisoners of their husbands" even with reference to their rights of separation by way of khula; And as these views expressed by the decreers, according to my belief, faith and knowledge, are against the basic principle of Islam; And as the judgment of the Supreme Court on the issue of Khula in the case of Mst. Khurshid Bibi (Supra) is binding on all courts; And as. On account of these pinching and irritating views/remarks of the decreers, any silence on the part of judiciary would amount to conceding and accepting those views to be correct which could create an impression that courts had found themselves unable to defend their on decisions with sound reasoning against the views expressed by religions doctors; Therefore I was forced to use few drops of ink from my pen on the issue of khuls with this feeble hope that the views of decreers enthusiastically charged with smoky flagrancies of sectarianism steaming out of the fumances of their sectarial characteristics may be changed into attractive perfumes of Islamic' unity. However what has been expressed in this judgment be treated nothing but only introductory exordium, or supplemental augmentation or corroboratory elucidation on the unique, scholarly and master-piece verdict in Mst. Khurshid Bibi case (supra) on the issue of Khula because my feeble lore in the field of religion and law cannot be equated with authoritative studiousness of those erudites who spent big pieces of their lives in service of these fields. So far as the views of decreers or any Specific School of Jurisprudence are concerned, l would, discuss them in the forthcoming paragraphs in detail.
36. Critiques by Religious Doctors.
9. I consider the Religion of Islam " a perfect universal code of life for the human-beings for all times till the Last day of Judgment and not the fief of any self- styled decreers or recognised religious doctors or Muftis belonging to Specific School of Jurisprudence. Hence, notwithstanding to the constitutional binding force under Article 189 of the Constitution of the Islamic Republic of Pakistan I did not consider it proper to leave this issue untouched with reference to the critiques made by certain religious doctors. I would have ignored the views of those doctors if the learned advocates had not enthusiastically stressed upon these critiques and particularly if I have been sure that these critiques would only by used as pieces of scholarly work of religious doctors and not for the purpose of exploitage by certain comers to poison the minds of innocent souls of those married women and their families who are living happily after their re-marriage as well as against the courts by creating an atmosphere of doubts against their verdicts particularly on the Muslim Personal Laws. In this regard it can be said with certainty that no believer can dispute that the Holy Quran and the Ahadith of the Holy Prophet (peace be upon him) are the main sources of Islam while Ijtihad, Ijma, Qiyas etc are the secondary sources. Ijma is also a form of Ijtihad but the deference between the two is that Ijtihad is done by individual scholars to express any opinion on any issue on the basis of their reasoning while Ijma shows collective opinion of scholars on an issue in any age. These two terms can be explained with the help of following two examples.
37. When Hazraat Maaz-bin-Jabbal was appointed as Governor and Qazi of Yemen. "the Holy Prophet (peace be Upon him) asked him, "How would you adjudicate cases? He replied, "by the Book of Allah." The Holy Prophet (Peace be upon him) asked, "If you do not find in the Book of Allah, then? Lie replied "Then by the precedent of the Prophet." The Holy Prophet (Peace be upon him) asked, "If you do not find any precedent of the Prophet (peace be upon him) well as in the Book of Allah then? He replied, "1 will diligently try to form my on view (to justice)."
38. Arabic On this Holy Prophet (Peace be upon him) is reported to have said.
39. "Praise be to Allah who bath fulfilled in the messenger sent forth by His Apostle that which is well pleasing to the Apostle of Allah.
40. Arabic (Ref: Chapter "FI-Ijtihad-ul-Rae-Fil Qazi in Kitabul Aqzia in Sunnan About Dawood and Chapter Ma- Jaa Fil-Qazi Yuseebu-Wa-Yokhta Kitabul Ahkam in Jama-Tirmazi; {{ Arabic Text Miss }} This is one of the best examples of Individual's opinion but for the purpose of collective decision I would like to refer the example of following important issue and decision.
41. After victory of Iraq and Syria, difference of opinion arose among the followers of the Holy Prophet (Peace be upon him) about distribution of land among the soldiers. Caliph Hazrat Umar(R.A.) opined that the land be retained by their original retainers and tax be recovered from them but some of the companions of the Holy Prophet (peace be upon him) strongly opposed this idea. The view expressed by the Caliph was not accepted in the first meeting and the matter was adjourned to be taken into consideration hi the next meeting. The Caliph relied upon certain verses of the Hold Quran in support of his views in the next meeting which was endorsed not only by Hazrat Usman and. Hazrat Ali (R.A) but also by those who had opposed the said view in the first meeting. 1 had mentioned the details of this' issue and collective decision of the companions in an unreported Judgment of this Court titled as "Capt. Muhammad Aslam Vs. Mst. Noreen in C.P. Nos. 17/95 and 40/94.
42. In the said judgment I had also referred te first speech of First Caliph Abu-Bakr Siddique (R.A.) wherein it had been said by the Caliph " Obey till I obey Allah and / the Messenger of Allah. You are not bound to obey if I violate the Law Allah and His Messenger."
43. In the light of all those examples, there remains no doubt that whenever any dispute arose among the companions of the Holy Prophet (peace be upon him) on any issue then view of any of the companions was not imposed upon others. The view was discussed in detail to reach any collective decision.
44. Third empale relates to the. Difference of opinion between Hazrat Umar, the second Caliph of the Prophet (peace be upon him) and his son Hazrat Abdullah-bin- Umar on an issue related to Hajj (pilgrimage ). To understand the details of this difference of opinion it is necessary to know the different forms of Hajj which can be summarised as under: There are three forms of Hajj known as: "frad Quran and Tamaru In the case of "IFRAD" a Haji (means a person who performs Hajj) puts on Akram only with intention of Hajj without any intention of Umra.
45. In the second form of Hajj known as QURAN a Haji puts on Akram with intention of performing Hajj along with Umra. In the third form of Hajj known as Tamatuu a Haji puts on Akram first to perform Umra. After performing Umra, he puts OF Akram and puts on his common dress during which period he can do all those works which are not permitted during Umra and Hajj. Before the day of Hajj starts i.e., 8th Zul-Hajj, he puts on Akram again with intention to perform Hajj and does not put OF Akram till Hajj is performed.
46. Out of these kinds of Hajj, TAMATTU is the easiest form and majority adopts this form, of Hajj. But the view of Hazrat Umar the second Caliph of the Holy Prophet (peace be upon him), is that the form of Hajj known as Tamattu is not permitted. Contrary to the view of Hazrat Umar, the view of his son Hazrat Abdullah- bin-Umar is that Tamattu is permitted. This difference of opinion has been mentioned in Jama Tirmazi as under: "Narrated-.By be-Shehab-that Salim-bin-Abdullah told him that he listened one Syrian asking AbduIlah-bin-Umar about Tamatta, the Umra till Hajj. So Abdullah-bin-Umer said, "If is valid " so the Syrian said, "But your father has prohibited from that". So Abdullah-bin-Umar said, "Look ! If my father prohibited something and the Holy Prophet (peace be upon him) did the said thing.
47. Then, whether my father be obeyed or the Holy Prophet (peace be upon him) shall be obeyed in respect that order?" So the man said, "Of course, order of the Holy Prophet (peace be upon him) shall be obeyed,": So (Abdullah bin timer) said, certainly (Tamatta) was done by the Holy Prophet (peace be upon him). (Chapter "Ma-Jaa- fitta-Mattu Kitabul Haj in Jama-e-Tirmazi). {{ Arabic Text miss }}
10. All these examples do not leave any doubt about this reality that even a son has right to express his on opinion against the opinion of his father, may he be a Caliph of the Holy Prophet ( peace be upon him), if he considers that opinion of his father is against the Sunnah of the Holy Prophet (peace be upon him).
48. Admittedly, status of Hazrat Umar (R.A) the second Caliph of the Holy Prophet (Peace be upon him), was not less than his son Hazrat Abdullah-bin-Umar, but, inspire of this factual aspect, Hazrat Abdullah-din-Umar expressed his view contrary to the view of his father.
49. Admittedly the famous four Imams, when they were recognized as Imams of the Sunnis, belonged to the period when no Companion of the Holy Prophet (peace be upon him) was alive and moreover the status of these Imams can never be equal to the status of any of the Companions of the Holy Prophet (peace be upon him). If an opinion or Ijtihad of any Companion of the Holy Prophet (peace be upon him) in his individual capacity cannot be binding even upon his on son, then opinion of any of the four Imams can also be not binding upon his followers, students or disciples or upon anybody else. In support of this reality it can be said with certainty that Imam Abu Yousuf and Imam Muhammad , the main disciples of Imam Abu-Hanifa, did not follow Imam Abu- Hanifa on several points. It may not be feasible to give the details of all those points in this judgment but one easily available book with its urdu translation known as Qasoori can be referred in this regard. Instead of reading the whole book only one chapter on "Salat" may be sufficient for the readers to see that difference of opinion among Imam Abu-Hanifa, Imam Abu Yousuf and Imam Muhammad was common. Perhaps this is the first book at Hanafi School written in the fifth century. Author of this book was Abdul-Hussain Ahmad-bin-Muhammad who died in 428 A.H. I have referred several other books in one of the forthcoming paragraph to show that almost all such books were written several countries after the departure of the Holy Prophet (peace be upon him. One the basis of this discussion 1 can say without any hesitation that the muslim community is not bound to follow any religious decreer of any specific sect on any issue unless the same is endorsed by the main sources of Islamic Law.
(Note) I have underlined the words for the four famous Imams "that when they were recognized as Imam" because during the period of Imam Abdul Hanifa. Only few companions of the Holy Prophet (peace be upon him) were alive such as Hazrat Anas in Basra, Hazrat Abdullah-bin-Abi- Auf in Kufa, Hazrat Sehl-bin-Saadi in Madinah and Hazrat Abu-Turai! m Mekhah. Perhaps Hazrat Abdullah-bin-Abi-Auf was the last companion of the Holy Prophet (peace be upon him) who died in 86 A.H. At that time Imam Abu Hanifa was about 6 years old as he is stated to have born in 80 A.H. In-spite of all my efforts I failed to find out any other name of any companion of the Holy Prophet (peace be upon him) who had been alive after 86 A.H. If some on^ claims that there had been anyone then it would be necessary to find out the age of Imam Abu Hanifa at that time to find out whether Imam Abu Hanifa had met that companion of the Holy Prophet (peace be upon him) or not.
11. In continuation of the above mentioned point it may not be out of place to mention that different classes of people are named with different names. For example the companions of the Holy Prophet (peace be upon him) are known as Sahabis with plural "as Ashab Their students and followers are called Taabi-een whose students and followings are known as Taba-Taabi--een.
50. There is no dispute among the believers that status of a Taabee is higher than Taba-a-abee. All the four Imams of the Sunnis belong to the class of Taba-Taabi'een, Therefore they can also be disputed when the person having higher status than these Imams can be disputed, too. Admittedly the status of these Imams is much more higher than the status of those great scholars wo belonged to the 14th century of A.H. And were living in any corner of the muslim world much less to say the scholars of the sub-continent.
51. Thus it is evident that Hakimut-Umat Moulana Muhammad Ashraf Ali or Mufti Azam Pakistan Moulana Muhammad Shafi or his son Mr. Justice Muhammad Taqi Usmani may be possessing any Status whats over in the eyes of their followers but the said status can never be higher than any of the persons belonging to those classes as mentioned above. Therefore, if any Sahabi, Taabee or Taba'Taabee cannot be followed unconditionally in their individual capacity then no person of the present age, including Hakimut-Umal Moulana Muhammad Ashraf Ali Thanvi or Mufti Azam Muhammad Shafi or his son Mr. Justice Muhammad Taqi Usmani or another person, whosoever. He may be, cannot be followed blindly or unconditionally because such conduct is against the basic principles of Islam. On the basis of these propositions, the views expressed in a book referred by the learned advocates for the petitioners titled as Heela-e-Naija written by Hakimul-Umat Moulana Muhammad Ashraf Ali Thanvi alongwiht the critique by Mr. Justice Usmani on Mst. Khurshid Bibi case (supra) and the Articles written by one of the religious doctors of Hanafi School published in a newspaper and in a magazine may be persuasive in their nature bill they can never be authoritative, It may also be advantageous to point out that the main portion of the book Heela-e- Najeeza on the issue of Khula was written by Hazrat Moulana Muhammad Ashraf Ali Thanvi for the first time in 1351 A.H. (i.e. Approximately in the beginning of 193I A.D.). Its new edition along with detailed critique on the judgment of the Supreme Court in the case of Mst. Khurshid Bibi (supra) was published by "Darul-Ashaat Karachi" in Februay 1987. The critique was originally written in 1970 by our present Justice, Muhammad Taqi Usmani on.. The Hon'ble Member of Shariat Appellate Court, Supreme Court of Pakistan in capacity of a religious doctor as he is and as he was and hereinafter referred to as Mr. Justice Usmani).Mental attachment of the Hon'ble Justice with the view expressed in that critique was natural because his great and most respectable father Mufti- e-Azam Moulana Muhammad Shafi had played the most important role in composition of the main portion of the book. Publisher of the book is Moulana Muhammad Razi Usmani who is brother of Mr. Justice Usmani. I could not find any other book with such details on the issue of "khula" wherein it was opined that separation of w ife from her husband on the ground of "khula" would be invalid unless consented by the husband.
52. So far as the articles, published in a daily newspaper in the fast quarter of 1994 or in a Magazine published from Karachi on religious issues are concerned, they are basically more or less reproduction of the views expressed in the book referred above except that there is no mention of Mst. Khursheed Bibi case (supra) in these articles. However it was alleged by the author of the article, published in the magazine, that the views expressed on the point of khula by the Courts are the views of those who are influenced by modem westernised society. I robustiously refute this impression. Our innocent fault is that we. The Courts believe in reasoning instead of following any Imam of any sect blindly or unconditionally while the decreers want to imprison us in the chain of "Taqlid Shakhsi means to the following of only specific Imam blindly and unconditionally. Hence, it js necessary to discuss all the points raised by the learned advocates on the basis of articles written by decreers, in seriatim.
THE CONCEPT OF OLIL-AMR
12. I am of the opinion that prevailing concept of "divorce" in our male dominated society demonstrated by certain comers particularly by ulemas (hereinafter referred to as the religious doctors) of specific sect does not appear to be in accordance to the principles laid down by Islam which is believed to be the universal Code of life for human-beings, In this connection three questions generally arise that: Whether any of the religious decreers is an authority for any of the believer?
53. Whether the believers are bound to follow the views of any specific school such as Hanifi, Shafie, Maliki and Hambali?
54. Whether any unanimous opinion expressed by the famous four Imams is binding upon the believers on any issue?
55. To find out the answers of all these questions it would be necessary to being into light the real import and conventional meaning of phraseology known as "Olil-Amr" used in verse 59 Surah4 of the Holy Quran which speaks: O'Ye who believe!
56. Obey Allah and Obey the Apostle and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Apostle If Ye do believe in Allah and the Last Day That is the best and the most suitable for final determination. {[ Arabic Text Miss }} But the question arises who are Olil-Amr?
57. The religious doctors of different sects and political parties used this expression according to their on needs or interests which can be summarised as under:
(a) Before partition of the sub-continent, loyalists to the British Rule, with no exception to the religious, political, spiritual doctors etc, decreed the British rulers to be Olil-Amr on the ground that the "Rulers" were charged with authority. The underlines words are nothing but the literal translation of the Arabic words "Olil Amr.
58. This view is totally misconceived on account of the reason that the word "Minkum" means "among you" used along with the word "Olil-Amr" refers to the words "O Ye who believe" or "believers" and not the "non-Muslims British Rulers". Therefore such interpretation appears to be interpretation of those people who had vested interests in the British Rule. History of the sub-continent reveals that most of them were not only given beautiful titles by the British Rulers but were also blessed with big pieces of land as a reward of their loyalties and flattering character against the freedom fighters.
59. The result was obvious. The flatterers were benefitted while honourables were put in the hell of miseries. The world thus saw, in the language of Hafiz: t**t 6 J > -'i CL J J ^ U *l ^ b >/ * dJ' ^ 1 {{ Urdu text }} Translation: I see horse of the supreme race wounded under the pack-saddle while golden balcance around the neck of donkey.
(a) The second view was expressed by religious doctors. 1 would like to refer this view front a book titled as:" (Taqlid kie Sharee Hasiat) written by Mr. Justice Muhammad Taqi Usmani in capacity of a religious doctor and not as a Judge of the Supreme Court where he was elevated in October, 1982 during the Zia's Martial Law Regime.
60. The relevant lines run as under: {{ Urdu text miss }} These lines, if translated into English, may be read as under: However, according to this commentary, the muslims have been asked in 0 the verse that they should obey Allah and Apostle and obey those religious doctors and jurists who are commentators of the Holy Quran and the Sunneh of the Holy Prophet (peace be upon him) and "Taqlid" is the termino logic al name of obedience (page 17 of the referred book).
61. So far as the issue of Taqlid is concerned I would discuss the same in some other paragraph but with reference to the interpretation of word (Olil-Amr) the view expressed by Mr. Justice Usmani is that religious doctors and Jurists are the "Olil- Amr". The learned Justice after treating "Taqlid" to be of two kinds and terming them as Taqlid Ghair Shakhsi and Taqlid Shakshi in the said book, reached a conclusion that: . If/f Jp(/'the/fiftyish {{ Urdu text }} These lines, if translated into English, may run as under: Blessings of Al-Mighty Allah be upon our latter jurists who were well acquainted with the requirements of their time and who possessed divine guidance from Al-Mighty Allah to keep watching over the changing circumstances. They, later on, adopted only "Taqlid Shakhsi" out of the two mentioned kinds (of Taqlid ) for practical purpose under the most necessitated administrative expedience and gave this decree that now the people should act upon "Taqlid Shakhsi" only and, instead of following sometimes one Imam and sometimes the other, get themselves affiliated with any specific Mujtahid and should follow his "Mazhab (page 60 of the book).
62. 1 have avoided to translate the word "Mazhab" used in the above para, into English so that it should become clear that Taqlid" of any "specific Imam" possesses the concept of "Mazhab".
63. This view may be acceptable to those who are "Muqalle-deen" means followers of any specific Imam or Jurist but common sense of human beings does not attract this view because the expression "Olil-Amr" is plural in its form and therefore it cannot be used for any specfic individual Imam, or jurist. Moreover every sect has large numbers of jurists and difference of opinion among^ these jurists is an undeniable reality, Hence several questions arise in the mind of every believer before accepting this concept including the following questions:.
64. Who should be followed and whose view be ignored?
65. What can be the bases of following and ignorement?
66. Who was the founder of Taqlid or when the period of Taqlid started?
67. Taqlid might have been proved to be the most forceful in such areas where; people remained ignorant of Islamic laws on account of the reason that translations of the Holy Quran and the books of Ahadith, from Arabic into local languages, remained unavailable in those areas. Hence, in all such areas, there was no other way for the common people but to follow the scholars blindly without knowing the sect to which the scholars belonged. But the grip of these scholars became weaker and weaker in all the areas where translations of the Holy Quran and the Ahadith became common and available in local language because the people started showing interest to know the reasoning in support of every issue instead of following the religious scholars blindly. This attitude forced the religious doctor to change their conduct. For example, the religious doctors. In the past, never hesitated to issue the decrees of Halala, but in the present age, several religious doctors avoid to do so because Ahadith on this shameless act have come to the knowledge of common people after translations of the Books of Ahadith.
68. Therefore, I have no doubt in my mind that Taqleed may be necessary or forceful even today but only in those areas where the people are totally unaware about the teachings of Islam or are illiterate. But, in Pakistan, Taqlid possesses no more importance because large number of translations of the Holy Quran and the Books of Ahadith are available in English, Urdu as well as in the local languages. Therefore, the people are now interested to know the reasoning in support of any issue instead of following the views of any religious scholar blindly.
69. On account of this reason, it can be said with certainty that the learned religious. Scholars, in Pakistan, cannot be treated Olil-Amr.
70. (c). Third view expressed by certain jurists is that the expression Olil-Amr includes the rulers as well as the religious jurists. This view is nothing but only a combination of the above mentioned two views. Supporters of this view say that people ae bound to follow the rulers in political matters but have to follow the religious scholars/jurists- in religious problems. This view appears to be the most defective on account of the following reasons.
(i) If this view is accepted to be correct, then politics and religion have to be accepted two independent things and it would shatter the cannot that Islam is a perfect Code of life;
(ii) This view does not rule out the conflict between the rulers and the religious doctors, In case of conflict the question will arise who should be followed or who should be ignored? Confrontation between rulers and religious doctors would un-doubtedly divide the nation into two groups and the result of such division is known to everyone who possesses common sense and little knowledge of history.
13. Who can be treated "Olil-Amr" is Islam if the rulers and the religious scholars are not accepted to be Olil-Amr?
71. In my view. Olil-Amr are only those believers whose decisions or orders possess supremacy over the orders of all other persons in respect of disputes among the people. Such person can be head of the State or any person appointed by the head of the State. For example, during the period of the Holy Prophet (peace be upon him), the Prophet himself was the executive, the spiritual and the judicial head of the State, He had appointed several persons in different areas to serve as executive and judicial head,' such as Hazrat Maaz-bin-Jabal in Yemen, Utab-bin-Used in Makkah.
72. Ala-bin- Hazrami in Behrain with Khalid to work with him as vicegerent and Amar-bin-As- Al- Qarshi in Palestine. After departure of the Holy Prophet from this world, First Caliph Hazrat Abu Bakr (R.A.) served as the head of the Muslim State as well as the Qazi for the people. His famous decision against Hazrat Umar regarding custody of his son Asim can be quoted for the purpose of reference (Al-Bayhaqi: AI-Sunan-AI- Kubra). It has been stated by large number of historians that second Caliph Hazrat inter-bin-AI-Khattab, after becoming the Caliph, made judiciary exclusively separate branch of the Government and introduced the system of appointing Qazis (Judges) to perform the functions of judiciary. It may be true but it appears that the said system was not adopted by the Fourth Caliph Hazrat Ali because history is witness to this reality that he appointed Malik-al-Ashtar, and after his assassination Muhammad-bin- Abu-Bakr, as Governor, and Qazi of Egyptt: By keeping all these historical facts in view, the President of Pakistan would be justified, under Article 104 of the Constitution of Islamic Republic of Pakistan, to appoint any of the Judges to act as Governor whenever the Governor is out of country, instead of asking the Chief Justice or the Speaker to act as Governor as is usually done in absence of the Governor of any province. It is important to point out that when this country was blessed with.
73. Constitution of the Islamic Republic of Pakistan, 1973, the main stress was put on separation of judiciary from the Executive (Article 175(3). If this Article is judged from Islamic point of View, then it can be said with certainty that in Islam, judiciary and the Executive can be kept interdependent.
74. Islam pleads only supremacy of judiciary over the Executive and not the separation of judiciary from Executive although Judges have to be appointed by head of the State. Almost in all democratic countries, Executives and Legislature are kept interdependent in certain matters but dependent in several important matters. For example, legislation of any law of amendments in the Constitution involves a procedure where separation of Executive and Legislature is not possible and it may create complications too. Similarly separation of Judiciary from Erectile-we as decided by the Honourable Supreme Court in the cases reported in PLD 1993 SC 341 and PLD 1994 SC 105 would certainly lead to supremacy of Judiciary but it certainly requires a very deep anlysis to meet all expected complications particularly on account of fresh Trend of impleading the heads of different organs of the State by name as is being observed in different petitions filed from certain corners.
75. Similarly different Articles of the Constitution of Islamic Republic of Pakistan are expected to be affected due to separation and it may cause Constitutional crises if these aspects are not taken into consideration before the separation is effected in its actual sense. I feel that in the present set- up. Our Judiciary is independent in its practical sense although not separated as stated in Article 175(3) of the Constitution of Pakistan. However, it depends upon the Judges to keep it as much independent as it is or to keep it in a better position than it was in the past. Because, so far as this poor nation is concerned, it always accepted its decision even for validating several Martial Law Regimes. In spite of this known reality' that democracy was always stabbed by several Martial Law and the democrats were hanged not only in Pakistan but also in every other country wherever the Martial Law was imposed on the strength of guns of bullets. Similarly the concerned authorities, while considering separation, had also to see whether the Judiciary will have its on force to get its orders implemented or would seek the help of Executive for their implementation after separation?
76. Notwithstanding to the above discussion, that Islam believes in supremacy of Judiciary over the Executive, I have deduced from the same discussion that Judges of the Courts possess the status of Olil-Amr in all muslim countries and, therefore, they have to be followed in accordance to their judgments unless these judgments are shattered by any higher forum. On the basis of this proposition, the decrees of religious doctors on the issue of "Khula" as published in different newspapers can be treated only persuasive while Mst. Khurshid Bibi case (Supra) would be treated authoritative for everyone because it was pronounced by those, who in my view are Olil-Amr. My reasoning for holding so is based on several incidents .Quoted in different history books but I would like to refer only few in support of my conclusion.
(i) Dispute between Hazrat Ali and a Jew regarding an armour (Zirah) is a very famous case which was decided by Qazi Shurih. The claim of Hazrat Ali was that he was ow per of the account in dispute which had been lost when he was proceeding for the battle of Saffian while the Jew claimed that Zirah belonged to him. The Qazi (Judge) asked Hazrat Ali to produce witnesses in support of his claim, hazrat Ali produced his son Hazrat Hassan and a slave namely Qambar. The Qazi declined to accept the statements of those witnesses on the ground that son in favour of his father or salve in favour of his master was not a competent w itness. Even the averments of Hazrat Ali that, according to the saying of the Holy Prophet (peace be upon him) his son was the leader of young men in the heaven, were not accepted by the Qazi (Tareekhul-Khulfa by Allama Jalaluddin Sayuti). In this case no one has any doubt that status of Hazrat Ali and his son Hazrat Hassan was much more higher than Qazi Shurih because Hazrat Ali and Harat Hassan were Sahabi but Qazi Shurih was Taabi. Similarly no one including the judge had any doubt about the truthfulness of the statements of Hazrat Ali and Hazrat Hassan. In spite of that Hazrat Ali was not Olil-Amr . In that case. He was only a complainant. It was only Qazi Shurih who possessed the status of Olil- Amr at that time although his status in capacity of Taabi was much less than Hazrat Ali or his son Hazrat Hassan.
(ii) Another incident relates to second Caliph Umar who wanted to expand the area of Masjid Nabvi, when he was serving as a Caliph. He succeeded to acquire all the properties around the masque for the said purpose except one house owned by Hazrat Abbas who refused to sell it at any price. The dispute was not solved ph Hazrat Umar by exercising his powers as a Caliph but he presented the case to Qazi Abi-bin-Kaab who gave a decision against the Caliph saying that the Caliph-had no power to acquire the said house by force or under compulsion. Although Hazrat Umar had decided several cases in which he himself was not a party but when he became a party himself, he referred the matter to the Qazi, hr this case Qazi Abi-bin-Kaab was having the status of Olil-Amr. Al- Faruq by Shibh Naumani can be referred for this incident.
77. (i.e) During the period of First Caliph Hazrat Abu-Bakr, Hazrat Umar found his son Asim playing in front of a a mosque and took him away. Dispute about his custody came before Caliph Hazrat Abu-Bakr who decided the case against Hazrat Umar and rejected the contention of Hazrat Umar that he had more right over his son than the mother (or the grandmother of Asim). Hazrat Abu- Bakr gave this decision when he was not only the Chief Executive of the Muslim State known as "Amir-ul-Momineen" but was also possessing the status of Qazi. Thus he was having the status of Olil-Amr.
78. From the above discussion it is fully evident that the Courts, particularly in 'democratic countries, possess the status of Olil-Amr and their decisions would prevail over the decreers of individual decreers. Therefore, the decrees of the religious decreers can neither shatter the rights of ladies on the issue of Khula nor these decrees are authoritative for the common people.
14. Main points radiated from the commandments embodied in verse 59 of Surah 4 of the Holy Qur'an as reproduced in para 12 above can be summarized as under:
(i) Addressees are the believers and not the rulers or the jurists.
(ii) The believers are bound to follow the commandments of Allah and His Apostle un-conditionally as no believer can dispute with Allah and His Apostle regarding these commandments.
79. (i.e) The believer have to follow "Olol-Amr to means "who are charged with Authority" but not un- conditionally because dispute with them is possible.
(iv) In case of any dispute, the believers are not bound to follow the Olil-Arfn but the matter has to be decided according to the principles laid down by Allah and His Apostle means in the Holy Quran and the Sunnah of the Holy Prophet (peace be upon him).
(v) These principles shall be adopted by all those persons who believe in Allah and the Lasts Day. In other words, if anyone declines to accept these principles, his/her claim to be a believer is nothing but lip-service for Islam.
(iv) The decision based on these principles were declared by the Holy Quran as the best and the most suitable, for final determination.
80. In the light of these enunciations, if the
15. It can be said by religious doctors that decisions given by the judiciary can be disputed too if it is accepted that courts fall within the definition of "Olil-Amr" in Pakistan or in any democratic country. No doubt decision of a court can be disputed but it does not mean that it can be ignored too. There is well-settled judicial system in every country. Any decision pronounced by any trial Court can be challenged in the Higher Court by every aggrieved party. This process can continue till the matter is decided by the Supreme Court if the concerned parties so desire and if any party is dis-satisfied by any decision of the Supreme Court then review application can be filed under Article 188 of the Constitution of Islamic Republic of Pakistan which reads as under: "188 The Supreme Court shall have power, subject to the provisions of any Act of Majlis-e-Shoora (parliament) and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it."
81. It was better for the decreers to come forward before the . Courts to assist the Courts in service of Islam instead of creating misunderstanding about the Court or misleading the simple believers by giving such decrees as were published in a daily news-paper of Karachi in the following words: Jtf'y/t'ZrjJttl# J* v Sfi t k > 'V*-k AM# ; I ^in* is/t Vr if 2-lf x'f a (>t ext/'Zjti Sv~)/ t-/ 6Ji' ^j6a r c- "*/ -fIjt {{ Urdu text }} These decreers have been issued by those sects who believe that: {{ Arabic Text miss }} This couplet, if translated into English may read as under: Imprecations numbering particles of sand upon a person who repels saying of Abu-Hanifa.
82. Illogicality of the decreer's views.
16. Notwithstanding to such beliefs possessed by any sect besides their self- styled provocative unfounded pretensions, I would like to deal with the issue of "Khula" on the basis of their on school of jurisprudence with reference to another kind of divorce known as (Taiaq Mukrahah) means divorce pronounced under compulsion. According to the Hanafis, if a person, kept under fear, threat or beating, pronounces divorce, it does take effect inspire of husband's helplessness because "will" is not a condition for the divorce to become effective. For the purpose of reference Al-Hidayq can be referred which contains the word means divorce under compulsion takes place.
83. Imam Aini has written a commentary on Al-Hidaya known as AlrBenaya Fi-Shrah-Al-Hidaya and has discussed this issue by claiming that: Same is the view of Umar-bin-Al-Khatab (R.Aj Ali-Bin-Abi-Talib and Abdullah-bin-Umar(R.A) and the same was said by -Al-Shaabi. And Ibn- e-Jabber and Al-Nakhi and Al-Zubri and Saeed 'bin-AI- Museeb. And Shurih-AI-Qazi and Abu Qalaban Abdullah-bin-Zaid-AI-Harmi-Al- Taabi-ul-kabir, and Qatabah and Suree. {{ Arabic Text Miss }} It is notable that Imam Aini is also the author of Umdatul-Qari which is commentary on Sahih-ul- Bokhari, I think that religious decreers of Pakistan could claim even "Ijma" on tis point if the history had been silent on the insult of Hazrat Imam Malik whose face was blackened, made to ride on a donkey or camel and was roamed in the streets of Madinah under the orders of Governor of Madina namely" Jaffer -bin-sulman appointed by Abu-Jafar Al-Mansur(l36-I58 A.H./754-775) the Second Caliph of the Abba side Caliphate. But, in that condition too, he was addressing the people as under.
84. "Those who know me, they know me certain (means who I am) and those who do not know me (they must know ) that I am Malik-bin-Ans. I say with certainty that divorce under compulsion is nothing. {{ Arabic Text miss }} The Imam was flogged and he suffered dislocation of the shoulders but he did not change his views It is notable that Imam Abu Hanifa and his main students have the same view on the issue of divorce under compulsion but the Malik is, the Shafis the Hamblis, the Zahiriyyahs and the Shias do not believe in divorce under compulsion.- Several Ahadith narrated by Hazrat Umar, Hazrat Ali, Ibn- e-Abbas, Ibn-e-Umar. Ibn-e-Zubair can be quoted in support of the views expressed by the Imams other than Imam Abu Hanifa. Notwithstanding to the difference of opinion among the jurists, the view expressed by one of the religious doctors published in Daily Jang, Karachi dated 8th December, 1995, caught my specfic attention. It reads as under: {{Urdu Text Miss}} If this decree has any legal value, then in the present political set up if any ruler falls in love with the were of a poor person and the said were is also greedy to enjoy the richness of the ruler, then nothing can stop the ruler to get that were divorced from her husband on the strength of dictatorship which is common factor in all third-world countries. It is thus evident that no were of a poor husband would be safe from the lust of rulers, if divorce under torture is treated to be valid and effective. Similarly if any influential were wants to get rid of her husband and lives in a country where corruption rules everywhere, then she can hire any bribable official to put her husband under torture and compulsion. The poor husband can be booked in cognizable offence if the palms of the official are properly greased. The result is known to everyone. The poor husband, in such circumstances, would divorce his were to save himself from agonies of mental as well as physical torture. This method would be the best one for an influential were to get separtion from her husband instead of spending big piece of her life in the ecompetent Court of law to get separation in respectable manners.
85. In the light of these examples, illogicality of the decreers' views is fully evidence and needs no further comments because no sensible person can believe that a divort under compulsion, torture, fear, threats, etc. Through police, dictators or rulers without the real consent of the husband be treated valid but separation between husband an< were pronounced by a Court on the point of Khula be not treated valid unless consented by husband even if a Court reaches a conclusion on the basis of evidence of both ,the spouses that the spouses cannot maintain the limits of Allah if they weri not separated.. Thus the values of the decreers on the issued of khula as published an propagated in the newspapers can be easily evaluated by every Muslim.
17. I think that most of the decreers may take the same stand as was taken I the critique on Mst.
86. Khurshid Bibi's case (supra) on page 241 of the book "Heela -e Najeza. This stand reads as under:- These lines, if translated into English, may read as as under:- What has been stated in the beginning of discussion about"Taqlid" by Mr. Justice S.A. Rehman's, that is totally irrelevant because the matter is not of Taqlid but is of unanimity of jurists. Mentioning of Taqlid could be well-adjusted where an issue had been based on the saying of anyone jurist. But you have noticed that on the issue (of khula) the Hanafi, the Shafie, the Hambili and even the Zahiree Jurists have unanimity and it is not merely the personal view of a Jurist. Therefore, what has been stated by Mr. Justice about Taqlid is not necessary to be commented upon by us.
87. With due regards for the critic on his critique, I have no hesitation to say that unanimous-view of hundreds of jurists can be disputed from being accented much less to accept the view where four recognized Imams or the Zahirya have unanimity because there is no such principle that if the four Imams or Zahirya have unanimous view on any issue, the same stands binding upon the believers'.
88. In this connection it would not be out of place if l also refer few lines from "Tafhimul-Quran", a commentary by Moulana Abu-ala-Maudoodi" which run as under: {{ Urdu text miss }} The lines, if translated, may read as under: "So far as this form(of divorce) is concerned that three divorces be pronounced at a time, as is the usual custom of ignorants now- a-days, the same is a server sin. The Prophet (peace be upon him) has vehemently condemned it and there is proof to this extent that if anyone divorced his were thrice at a time, Hazrat Umar to flog that person. However, inspire of being sin, as per four Imams, the three divorces do take place and the divorce becomes final and irrevocable."
89. (Note 250 on verse 229 Surah 2 (Al-Baqrah) page 174 of Tafhimul- Quran)
90. In spite of all my efforts I could not find not the reasons why Hazrat Umar used flogging if anyone divorced his were thrice at a time. If this mode of divorce was lawful, then flogging was illegal and if flogging was legal then punishment of flogging by Hazrat Umar was not meaningless. Similarly it is also important to point out that I could not search out any reference from any book which could show again of opposition from any corner regarding flogging by Hazrat Umar in the case of Talaq- ul-Bid 'dat.
91. In the .Light of this aspect, if "concept of Taqlid" as advocated by Mr. Justice Usmani and other religious sectors has any status in Shriah then it can be suggested on their behalf that legislature be good enough to introduce a law according to which all those husbands, who divorce their wives thrice at a time, be flogged as was done by Hazrat Umar (R.A.) However 1 leave this question for the religious decreers to decide whether act of Hazrat Umar can be called Ijma Particularly when it was not opposed from any corner?
92. I think that issues of Tauheed and "divorce" from among the beliefs and the muslims personal laws respectively are the most elaborately described issues in the Holy Quran and Ahadith of the Holy Prophet (peace be upon him). Therefore it would have been more appreciable if Moulana Abul-Ala Maudoodi had discussed this issue in detail with his definite conclusion^i regarding burning controversy of "Falq-ul- Bid dat (innovated divorce) among different religious doctors instead of closing the doors of discussion with the keys of views possessed by the four Imams. However I consider it necessary to discuss the aspect of claimed unanimity among the Imams and its consequences with reference to Talaq-ul-Bid dat to show that unanimity of views of the four Imams cannot be termed as "Ijma".
18. Notwithstanding to the correctness of contrary views of either of the groups or the views expressed by Moulana Maudoodi in Tafhimul-Quran as quoted above, as it is not the subject matter of this judgment, this is an indisputed reality that difference of opinion" regarding Talaq-ul- Bid dat is the most controversial issue among the jurists as is clear from the following: Hanifi's and This mode of divorce is invalid "bid'dat Malik is views.... (innovated) and not proper but irrevocable divorce takes place.
93. Shall .......... This mode OF divorce is neither bid 'dat nor invalid and irrevocable divorce takes place.
94. Hambali's view.... Same as that of Imam Abu-Hanifa and Imam Malik but according to Imam Ibn-e- Taimia Imam Ahmed-Bin-Hambal had changed his views and declared that three divorces in one - meeting would amount to only one divorce..
95. Ahl-e-Hadith............................................... This divorce is invalid and does not take place. Number of pronouncement of divorce may be three or hundred but it would be treated one if pronounced at a time.
96. Shia' view.................................................... According to Mootazillas no divorce is effected by pronouncement of three divorces at at lime but several other believe that only one divorce can take place provided the same is pronounced according to the prescribed procedure.
97. Now according to the commandant embodied in verse 59 of Surah 4 of the Holy Qur'an, and as discussed in paras 12 and 14 above, the dispute must be solved on the basis of principles laid down by the Holy Qur'an and/or the Sunnah of the Holy Prophet (peace be upon him) because leaving any dispute undecided causes grat damages to Islam and promotes sectarianism. But this sacred duty can be performed only by those who consider that difference of opinion among the jurists is source of thinking, reasoning and research to establish unanimity and-not by those who have imprisoned themselves along with their stagnant thinking in the capsule of their specific schools of jurisprudence. As the qualities of thinking and reasoning are the characteristics of living nations, therefore, difference of opinion is a S(ign of sacredness which promotes unity among the Muslims and increases the strength of a nation. Contrary to this attitude if the believers/Musiims give up their crested characteristics of thinking, then the result is obvious. This would be divided into groups to promote "sectarianism, disunity " and hatred among them which is nothing but cursedness. I have no hesitation to say that verse 59 of Surah 4 of tin? Holy Qur'an makes no one undisputable except Allah and His Prophet (peace be upon him). Therefore, every view, expressed by anyone in his individual capacity or collectively by a group of persons on any issue can be disputed from being accepted by even believer if he/she considers the same to be against Islam on the basis of his her research. On the same proposition, the decrees on the issue of "Khula" issued by different person can also be disputed from.
19. The decrees of the decreers and their value can also be explained with the help of another example with reference to democracy and Martial Law. It is known to everyone that democracy was imprisoned several times in Pakistan and fundamental rights of the people of Pakistan were usurped on the strength of guns and bullets imposers of Martial Law. It was known to every such usurper that the Hon hie Supreme Court had declared the Martial Law as "No Law" in As a Jillani's reported in PLD 1972 SC 139, but in spite of that General Zia-ul-Haq imposed Martial Law in 1977 and it was accepted under a doctrine known as the "law os necessity".
98. However, the law of necessity had never given powers to the General Jo hold powers till his death when, by claiming himself to be Soldier of Islam, he had assured the nation to remain in power for 90 days only; this law of necessity had not given him powers not to free this nation from the yoke of Martiai Law; this law of necessity had not given him powers to hold shameless referendum on 19.
99. 12,1984 (PLD 1985 Central Statutes 449) which was nothing but a symbol of fraud to meet the nefarious objects of Martial Law. In spile of all such things several religious decreers, Pir, Mirs.
100. Politicians and opportunists had sported Zia to protect their vested interests.
101. Can any sensible person say that there was Ijma on Martial Law because .Several religious decreers, Pir. Mirs, Politicians, etc. Had supported a person who had deprived the nation from their fundamental rights? From this example, the difference between "Ijma of jurists " and "unanimity of learned people" can be easily understood because same is the value and position of the religious decreers on the issue of Khula. There may be unanimity among certain jurists on the issue of Khula that separation between spouses cannot take place unless consented by the husband but it can be said with certainty that there is no Ijma on it.
102. If it is proved on the basis of principles laid down by the Holy Qur'an and Ahadith of the Holy Prophet (peace be upon him) that khula can be granted to a were without candent of her husband, then unanimous decision of thousands of learned scholars or jurists cannot replace the decision based on main source of Islam.
103. It may be interesting to point out that the Martial Law Authorities always claimed that their acts/orders cannot be called in question before any Courts on an\ ground whatsoever. Similarly the religious decreers also consider that their decreer cannot be Challenged by anyone, particularly by the Courts and, therefore, they do not hesitate to declare anyone as Jahannami if her she is found determined to act upon the decision of the Courts.
104. The simple analysis of this conduct of religious decreers leaves no doubt for me to presume that, indirectly, the Hon'ble Judges of all those Courts, including the Judges of the superior Courts, have been declared Jahannami wo have ever granted Khula to the views without the consent of their husbands.
105. Hence I have decided to deal with this issue in detail from even angle. Rut firstly from the critique on Mst. Khurshid Bibi Case {supra) by Mr. Justice Muhammad Taqi Usmani.
20. Mr. Justice Usmani has used the word Instead of using the word (Ijma), in a para quoted in para 17 above, in support of his views on the issue of "Khula". No doubt, there can be unanimity of several Imams on an issue but this unity cannot be termed as Ijma. For example there is unanimity among the four Imams on the Issue of Talaq-ul-Bid dat (Innovated divorce) but there is no Ijma on that issue. In juristic terminology "Ijma" is the consensus of Muslim Jurists on a specific issue or question of Law within the limits prescribed by the Holy Quran and the Sunnah of the Holy Prophet(peace be upon him). As every Muslim State has to face new issues to compete other nations on International level therefore Ijma is the need for all times. One of the learned religious decreers, whose views have been reproduced in Urdu in para 15 above in (he form of Questions and Answers had also written a detailed article published in a monthly periodical named as "Buyenat" in its issue of Jamadi- ul-Akhir 1415 A.H. In this article, which is spread over 23 pages, he had used such words which give impression of Ijma of Jurists on this issue. It appears that the learned religious decreer had treated the unanimity of views of certain jurists as Ijma of all the jurists which cannot be treated a correct approach on account of the difference between "unanimity" of Immams or of different School of Jurisprudence and 'Ijma' of Jurists as explained above with reference to Talaq- ul-Biddit (innovated divorce). The learned author of the Article also referred several books including "Mabsoot" by Al- Surkhasi reasting to the Hanafi School, Kitab-ul-Umm by Imam Shafie, Hidayatul- Majtahid by Ibn-e-Rushad , Al-Jami-ul-Ahkamul-Quran by Qurtabi related to the Maliki School of Jurisprudence, Zaudul-Meead by Ibn-e-Qayyum related to the Hambli School and Al- Mohalla by Ibn-e-Hazam claimed to be belonging to Zahiryali School.
106. It is notable that the learned decreer had referred these books without reproducing the actual words from those books. However, Mr. Justice Usmani has been good enough to reproduce certain dictions from few books in his books in is critique. It may not be feasible to burden this judgment with detailed discussion given in those books on the issue of khula because most of the books are still available in Arabic without availability of their translations in Urdu or English and more over the discussions ae spread over large number of pages For example, the issue in dispute in Majom-ul- Fiqah-AI-Hambli Volume I published by Darul-Fikr, which is related to Al-Mushni by Ibn-e- Qadamah. Is spread over from pages 299-311; Zadul-Meead by Ibn-ul-Qayyum-AI-Juzia volume V published by Muktaba Minar-ul-lslam contains discussion on differentiates (particularly from pages 192 to 200, Kitabul-Mabsoot by Shamsuddin Al-Sarkhasi volume V published by Darul-Mare fat contains one chapter on Khula which starts from page 171 and main point were discussed up to page 195 Al-Mohalla by Ibn-e-Hazam Volume X published by Darui-Fikr contains discussion from pages 235 to 245: Al-Mughni along with AI-Shrah-AI-Kabir Volume VIH published by Darul Fikr contains discussion from pages 174 to 205 and in Fath-ul-Bari, a commentary on Sahiwal Bokhari by Hafiz Ibn-e-Hajar Al-Usqalani published by Darul-File the discussion on khula is in chaps.12 and 13 from pages 484 to 504. I have referred only few books mostly published from Beirut (Lebanon) but same is position of all other books even published in the sub-continent. For example "Kitabul- Umm by Imam Shafie Volume V published in Arabic by Molvi Muhammad Bin Ghulam rasul Surt is Sons (Booksellers and publishers) Jamli Mohallah Bombay, contains discussion on the issue of Khula from pages 171 to 191. Hence it can be easily guessed that out of so many pages reproduction of few diction consisting of few lines cannot be sufficient to claim that the dictions are the binding views of authors of those books. Moreover as all these books are not easily available besides being costly, hence cannot be purchased by everyone, therefore I consider it proper to give certain references quoted in the case of Mst. Umar Bibi (Supra) (A.I.R. 1945 Lahore 51) as the said Judgment/ easily available for the purpose of certain reference on the issue of "khula", Out of several references, the judgment conatins reference of the following three books also.
(i) Umdatul Qari: This is commentary on Sahih- ul-Bokhari by Abi-Muhammad Mehmood-bib- Ahmed Badaruddin Aini (generally referred as Imam Aini) who belonged to Hanifi School of Jurisprudence. He was also author of Jurisprudence. He was also author of Al- . Benaya, a commentary on Hidaya.
107. (ii. Tafsir Kabir: This is commentary on the' Holy Quran by Fakhruddin Muhammad Razi generally referred as Imam Razi or Al-Razi is considered to be the most comprehensive by the Shias as well as by the Sunnis and very strong in interpretation from a Sufi or spiritual point of view.
108. (i.e) Fath-ul-Bari: This is a commentary on "Sahih-ul-Bokhari by Hafiz Ahmed - Bin-Ali-bin-Hajar- Al-lnqatani (generally referred as Ibn-e-Hajar is most comprehensive commentary eve authored by any other jurist.
109. The relevant paragraph with reference to these books in the said judgments were translated into English by the learned Justice Abdul Rahman, J (as he then was) as under: FROM UMDATUL-OARI (PAGE 53 OF THE JUDGMENT) _________ "But there is a difference of opinion as to what is to happen if the judges arbiters agree on separating the parties, It is the opinion of (Imam) Muslim, (Imam) Auzai and (Imam) Ishaq that it will be enforced independently of any authority and without the permission of the spouses. But the Kufies and (Imam) Shafie and (Imam) Ahmed Ibn-e-Hanaf are of opinion that they (arbiters) need permission because the right to divorce is with the husband; if he agree in this (divorce) well and food but if he does not (agree to divorce) then the indue will effect a divorce. Ibn-e- Abi-Sheba narrates of Hazrat Ali that he (Ali) said that Allah has permitted the arbiters to join the spouses and to separate them. Shahi is of opinion that whatever the arbiters decide will be enforced. Abu Salma is of opinion that if the arbiters wish they may bring the spouses together another they wish they may separate. Mujtahid is of the same opinion.
110. (underlining is my on)
111. FROM TAFSIR KABEER (PAGE 55 OF THEE JUDGMENT)
112. "Is it permissible for the two Hukkams to promulgate their order so as to bind the espouses with their consent.......... Shafei has two opinions in the mater, One of these is that it is permissible for the arbiters to act in this manner. (Imam) Malik and (Imam ) Ishaw are of the same view. The second view is that it is not permissible for the arbiters to act in tin's manner. Abu-Hanifa is of the same view and his reasons are that this is a delegation like all other delegations of authority. Shafei has narrated an incident of (Hazrat)Ali...... A man and a woman came to him and each of them had a group of people with him. Ali ordered them to appoint an arbiter from each side. Then he said to the arbiters "Do you know \our duty, It is your duty that if you see that they can be brought together then 'sring them together and if you feel that they should be separated, then separate them...."
113. FROM father BARI (PAC.E 56 OF THE .JUDGMENT)
114. Before quoting the lines from the judgment it is necessary to point out that the Judgment contain few lines in English, translated from an Edition showing reference of Volume 9 page 332. But I could not find out that Edition. The Edition available with me was published by Durul-l i.e. Beirut)Lebanon) and relevant lines appear mi pages 506-507 in Chapter "Al-Shiqaq" in Volume X. Ilallz Ibn-e-Ilaiar.
115. While referring ft e words translated as "If Ye fear a breach between their twain and word translated as 'if they wish peace' appearing in verse 35 of surah 4 of the Holy Quran Stated that: {{ Abrabic Text miss }} These lines, if translated into English may read as under: The religious doctors are unanimous on this point that addressee in refers to "Al-Hukam means rulers and persons referred in are Al-Hakman means arbiters. One of the arbiters should be from the side of the man and the other from the side of woman but if such people who will bring about settlement cannot be got from the friends/or families of the parties then it is permissible to appoint strangers who may bring that settlement. If the arbiters disagree their order will not be Sic Judgment page No. 56 not received the spouses but has no power to enforce separation, If it had been so that there is no power with the Qazi to unforecast separation, then there was no need for any were to come before the Court for any such relief which could not be granted by a Qazi. In such a case a were will be left with no other alternative but to beg for divorce from her husband even he may be a drinker, cruel. Dacoit or adulterer etc' In alternate, if she is rich, character-less or adulteress herself, then she should use some corrupt police officer to get her husband tortured till he agrees to divorce no matter he may be the most pious, kind and honest, because divorce under compulsion, in the Hanafi School of Jurisprudence also becomes effective. Such kind of interpretation of law is neither logically correct nor legally appears to be sound. Moreover on the basis of references quoted above from three famous books, no would is left for any sensible person that divorce or separation on any point including "khula" without consent of husband can be enforced by Qazi and the claim of religious decreers that it cannot be enforced without the consent of husband, or there is Ijma of Jurists on the point of consent, appears to be totally without any force.
116. OBJECT OF LMARRIAGE. STATUS OF THE SPOUSES AND PROCEDURE OF DIVORCE in ISLAM.
21. I have no doubt in may mind that all such complicacies and complexities about khula have arisen as an outcome of ignoring the teachings of the Holy Quran and Sunnah of the Holy. Prophet (peace of upon him) on the objects of marriage, the status of the spouses and the procedure of divorce in Islam. This conduct has resulted in the birth of male-dominated societies due to which the husbands started considering that divorcing the wives within seconds by pronouncing divorce without any fault of their wives is their exclusive right but the wives have to seek this relief for years and years in the Courts. In case the wives succeed to get separation from the Courts particularly on the point of khula, they are declared hellish. If they get themselves married after that separation through the Courts. I have no hesitation to believe that neither these religious decreers have any contract of the hell or the heaven nor they can claim for themselves to be heavenly persons.
117. With reference to the most important issue of divorce, I am of the view that neither marriage is an agreement of sensualization nor divorce is a lip-declaration to be enforced under threat or compulsion or in a joke or even without any intention as is done by the spouses in films. But it is so believed and advocated by large number of religious decreers. Hence I would like to deal with it in detail with reference to marriage because the issues of marriage and divorce and not only the bring issues of our society but ar also interdependent .
118. OBJECT OF MARRIAGE The purpose of marriage radiated by the Holy Quran appears to be as under: "And among his signs is this that He created for you mates from among yourselves that Ye may newell in Tranquility with them and He has put above and compassion between your hearts. Verily in that are Signs for those who reflect. / f kJCj j jl J J 'ti J C4JII *U J jl (rifjjijt') ' avijja jtet {{ Arabic Text }} The words Tranquility love and compassion used in the above verse are the objects of marriage. If these objects are shattered between the poses on account of any reason whatsoever then keeping them tied with one another would undoubtedly create complications besides already existing disliking, hatred and enmity between them.
119. It may be advantageous to explain the words Muwaddat and Rehmat used in the above verse to understand the real object of marriage.
120. The root of word muwaddat, means love, is "waddu which means "mail", It is used to joint different weak pieces into one stronger piece so that they could give support to one another.
121. The true import of word Rehmat , means compassion or kindness can be understood from the word Rehm-mother means "womb" which is place of protection, growth and nourishment for the innocent banties before their birth, It is thus evident that the spouses are bound to protect each other by supporting each other and to get Tranquility for each other on the strength of love and compassion.
122. CAN THESE OBJECTS be met if the husband is given right to divorce his were as and when he so desires without any fault of his were?
123. My answer to this question is a big "No" because marriage is a secured contract and the purpose of the said contract is sakoon, love , and compassion . If the matrimonial life of spouses becomes a cause of restlessness, hatred and pain on account of any reason, whatsoever it may be , and no chance is left for their reconciliation then only separation is left with no other alternative.
STATUS OF SPOUSES
22. In continuation of the purposes as radiated in the above lines I would like to refer other verses of the Holy Quran to explain the real concept of relationship between the spouses and their status in Islam. In this connection, the Holy Quran speaks as under: "Your wives, they are your garments and Ye are their garments" (2:187) j &1&-1 {{ Arabic Text }} The use of word (Garment has mystic concept in this verse. The garment in every civilised society is one of the basic necessities of life. Main function of tire garment is to cover all those defects which are not liked to be exposed by a person to anyone else. From this verse it is evident that the spouses, like garments, have to cover the weaknesses, defects, deficiencies etc., of each other although they themselves remain exposed to each other. When disputes between spouses reaches to a stage that they start exposing each other then the real import of their being garments for teach other comes to an end. Result is obvious. It would appear in the shape of separation between the two.
124. This verse also radiates the Islamic concept of equality between the male and the female.
125. The said concept is further supported by the following verse of the Holy Quran. The most honoured of you in the Sight of Allah is that who is the most righteous of you. (49:13)
126. Hence it is evident that front Islamic point of view, honourableness is not the fief of husbands or wives on the basis of their being male or female, rich or poor but it depends upon the best character and in this connection they possess equal status However it is possible that a person may have supremacy over the other on account of his/her personal qualifications or abilities. This fact can be derived from the following verse: ' "See how we have bestowed more on some than on others: but verily the Hereafter if more, in rank and gradation and more in excellence (17: 21) {{ Arabic Text miss }} On the basis of this verse a man may have superiority over certain other men or women and vice- versa but, certainly this verse does say that men have supremacy over the women or vice versa on the basis of their sex. The work means Some", used in the above verse includes "the men" as well as women. Same is the position in the verse quoted above (30:13) with reference to the objects of marriage. The relationship of husbands and wives is for the purpose of tranquility, love, compassion for each other. The concept that women were created to provide all these thing to men only and not by the men to the women is only found in other religious but not in Islam.
127. The difference between the males and the females is natural with reference to their capabilities whether they belong to the same professions such as doctors or advocates but not on the bases of their sex. A were, affiliated with the profession of advocacy may be a better advocate than her husband, if attached with the same profession, and vice-versa. This important aspect can also be derived from the following verse: "Never will I suffer to be lost; the work of any of you. Be he male or female. You are members, one of another. (3:195) {{ Arabic Text miss }} The commentary by Abdullah Yousuf Ali on-this verse runs as under: In Islam the equal status of the sexes is not only recognised but insisted one. If sex distinction, which is a distinction in nature, does not count in spiritual matters, still less of course would count artificial distinction such as rank, wealth, position, race, colour, birth etc. Similarly the Holy Quran speaks: If any do deeds of righteousness by they male or female and have faith, they will enter heaven and not the least injustice will be done to them: (4:124) {{ Arabic Text miss }} Hence the old concept of inferiority of women prevailing in other religious where a female in her childhood had to remain under the control of her father, in her adolescence particularly after marriage under the control of husband and in her Senior particularly after becoming widow under the control of her sons was shattered for the first time only by religion of Islam. Similarly even if a husband had been charterless the were was expected to worship him and after the death of her husband, she had to live lonely in this world till her death. Such restrictions in the civilised world are un-natural. For the purpose of reference I would like to reproduce sections 148,154 and 161 from Chapter V of the Laws of Manu (The Sacred book of the East) which run as under: 148: In childhood a female must be subject to her father, in youth to her husband, when her lord is dead to her sons; a woman must never be independent.
128. 154: Though destitute of virtue, or seeking pleasure (elsewhere), or devoid of-good qualities, (yet) a husband must be constantly worshipped as a good by a faithful were.
129. 161: But a woman who from a desire to have offspring violates her duty towards her (deceased) husband, brings on herself disgrace in this world, and loses her place with her husband (in heaven)
130. Same is the position in Christianity in their religious books where a were is regarded as a man's property like other properties such as house, ox, or donkey etc. Exodus 20:19 (old Testament of Holy Bible can be referred for the purposes of reference though in practical life their position is different.
131. Contrary to these concepts, Islam preached equality and declared that "Most honoured of you in the Sight of Allah is that who is the most righteous of you (Quran 49.13) It may be interesting and important to point out that certain jurists usually refer verse 34 Surah 4 of the Holy Quran in support of male dominated societies which speaks that: Men are the protectors and maintainers of women. Because Allah has given the one more (strength) than the other: J** UI j Udl,iU dj-jl JU jM {{ Arabic Text }} Such commentators usually translate the words as Men are "Rulers" over Women". This concept is fully shattered from the words used in the verse because the word includes the males as well as females as already explained while discussing verse 17:21 quoted above. If the purpose of this verse had been to show superiority of males over the females then there would have been use of words" means men have been given superiority over women. The real import of the word is protectors because men are primarily responsible to earn and to bear the expenses of their families on account of being the head of their relative. I have derived this concept from Muffredatul-Quran by Imam Raghib Asphahani which contains detailed discussion from pages 877 to 883 in its Urdu Translation with reference to the root of this word as well as on the strength of different words used in the Holy Quran arising out of that root besides mention of concept of "Ruler". It is believed that common people know the difference between the words Fazeelat or and Muqam or Qayyam or Qayam-u- Tuam as are generally used in Urdu). The words used in verse 3:115 gives impression of equality too.
132. The Jurists who believe in male dominated societies also refer the words (mean men have a degree over them) used in the Holy Quran but these words are referred without reference to the context. The verse, which contains these words, relates to the divorced women but their rights, even after divorce remain intact as is evident from the following: "An women shall have rights similar to the rights against them according to what is equitable. But men have a degree (of advantage over them) and Allah is Exalted in power, Wise (2:228) r f*l\ {{ Arabic Text miss }} The commentary by Abdullah Yousul Ali on this verse runs as deficient: "The difference in economic position between the sexes makes the man's right and liabilities as little greater than woman Q:1V: 34 refers to the duty of the man to maintain the women and to a certain difference in nature between the sexes. Subject to this, the sexes are on terms of equality in law as in certain matters the weaker sex in entitled to special protection.
133. From the above discussion status of males and females is fully evident and there is not a single verse according to which it could experiencible presumed that status of ladies in Islam is less than status of men or vice versa and even if it is presumed that ladies have less status than men, if does not prove that ladies become prisoners of husbands after marriage and cannot get themselves separated from their marriage- bond rules consented by their husbands as quoted in para 3 above.
23. It is necessary to point out that Islamic teachings do not consider marriage to be a simple civil contract. It is a contract based on Shariah with terms and conditions permitted by Islam and , therefore, this contract can come to end after adopting the procedure and fulfilling those requirements as prescribed by Islam and expressed in the following verses:
(a) If a were fears cruelty or desertion on her husbandss part, there is no blame on them if they arrange an amicable settlement between themselves and such settlement is best.
134. " IjS? j*s I jiujtf (trA'ZgftiJiijr) {{ Arabic Text }} Hence the first step in case of dispute between the spouses is "amicable settlement" between the spouses themselves. It may be advantageous to point out that the word "Nushaz" used in the above verse has been translated by Abdullah Yousus Ali as "cruelty" but in its real import, it reflects superiority complex of a person who considers himself of higher status than others including his were and on account of that reason he starts misbehaving and opposing others. I have derived this concept from page 1052 of "Muffredatul Quran by Imam Raghib Asphahani from its Urdu Translation published by "Ahle-Hadith Academy, Kashmiri Bazar Lahore. Similarly if a woman starts misbehaving, or adopts attitude of shamelessness or immodesty, the same would also fall within the meanings of Nushoz as is evident from another verse of the Holy Quran which relates to were of such class. In that verse learned commentator Abdullah Yousuf Ali translated the word Nushoz as "display and ill conduct" instead of cruelty. The said translation runs as under: As to those women on whose part ye fear disloyalty and ill conduct Admonish them (first) (next) refuse to share their beds (and last) beat them (lightly) but if they return to obedience, seek not against their means (of annoyance) for Allah is Most High. Great( above your all) (4:34)
135. (rrjtcTtUH'ijs) {{ Arabic Text }} It is notable that husbands, perhaps on the strength of this verse consider it their right to beat their wives even on trifling which is a shameless act on behalf of the husbands. It is only the act of open immodesty or shamelessness which permits a husband to punish her were with intention to force his were to give up the path of immodesty to save separation between them. This aspect was fully explained in Hajatul-Wida which address is available almost in all books of Ahadith such as "the Bokhari", the Muslim, the Tirmazi etc. In the light of above discussion, it is evident that the first step to resolve the dispute between the spouses is "AMICABLE SETTLEMENT" to save separation.
(b) The second and the third step to resolve disputes between the spouses can be deduced from the following verse.
136. If we fear a breach between their twain, appoint (two) arbitrators, on from his family and the other from her. If they wish for peace Allah will cause their reconciliation for Allah bath full knowledge and is acquited with all things. (4:35) {{ Arabic Text Miss }} (The underlining is my on) The commentators have different views about the addressees in this verse. Some of the commentators say that Ruler/Qazi have been addressed in this verse but the other view is that addressees are spouses. The convincing view is the one which I have mentioned in para 20 above from Fath-ul-Bari by Hafiz the Ha jar. The view that addressees in this verse are the spouses does not seem to be convincing because so far as the husband is concerned, the acts of admonishment, refusing to share the beds and, as a last resort, beating l sightly have been mentioned in the verse just before this verse i.e. Verse 34 of Sureh 4. After those acts it cannot be expected from the spouses that they would appoint arbiters themselves to get their disputes resolved. Hence the view expressed by Hafiz Ibn-e-Hajar is much more .Convincing which contains the mention of Allukkam means rulers or Qazis and Al-Hakman means arbiters. The "difference of opinion" among the jurists regarding powers of arbiters has already been mentioned in para 20 above with references from Umdatul-Qari, Tafsir Kabir and Fat-ul-Bari. Hence I. Need not to repeat the same. However the Second Step as embodied in the above referred verse, i.e." appointment of arbitrators" (apparitors), is general in its mature but open violation of this commandment is very common in our society. The reason of this open violation in our male dominated society seems nothing except that if this commadments is acted upon then monopolism of husbands established with the help of religious decreers to divorce wives by pronouncing talaq several times in the same meeting without any fault comes to an end. Paraphs this was one of the reasons that Hazrat Umar use to flog such persons.
137. The summary of above discussion is that following three steps must be taken. Before final separation of spouses:
(i) The spouses must try to reach an amicable settlement;
(ii) In case of failure to reach an amicable settlement, arbiters from the sides of the spouses be asked to resolve the disputes; and (i.e) In case the arbiters also fail to get the disputes solved or reach any unanimous decision, then matter has to be referred to a person who is competent to decide the same. That person can be a ruler or a Qazi or a competent established court by the State.
138. On the basis of these propositions, I am of the view that separation between spouses would not in accordance to the spirit of Islam unless the above mentioned steps are taken for enforcing divorce.
139. However there are exceptions when all these or any of the three steps are not required to be taken for the purpose of separation. The point with reference to the exception would be enlightened in the forthcoming paragraphs.
DIVORCE AND DISSOLUTION OF MARRIAGE
24. It is irony that spouses apod, inter alia, various un-islamic means when they face problems on account of separation between them such as;
(i) Some of them start living with their views even after irrevocable divorce and ignore the consequences to be faced by them in the Hereafter;
(ii) Some of them follow the decrees of decreers to their temporary husbands for the purpose of Halala which is an arranged temporary marriage to cut into pieces the chastity of pious women.
140. (i.e) Some of them who are usually chained in the prisons of decreers prefer to remain spectator over the destruction of whole family.
141. Note of the above acts can be treated appreciable or permitted by Islamic System. It so happens because the people have, unfortunately, misunderstood the difference between Talaq and Faskh- e-Nikah particularly in the case of "Khula". Hence I would like to make them clear in the light of different types of separation between the spouses.
142. It can be deduced from different sources that several modes of separating views were prevailing prior to the dawn of Islam. For example:
(a) Taking oath by husband for abstention from his were, which in its literal sense is called "Ela" was existing in pre-Islamic society but it appears that no specific period for abstention was attached with such oath. Hence the husbands had monopoly to keep their were rotting for an indefinite period but the Holy Quran regulated this mode separation in the following words.
143. For those who take on Oath for abstention from their wives, a waiting for four months is ordained. If then they return Allah is Oft-Forgiving, Most Merciful. But if their intention is firm for divorce Allah hearth and knoweth all things. (2.226-227) {{ Arabic Text miss }} Thus "Ela" in Islamic Juristical terminology is taking of oath by husband for abstention from his were for four months or for a period more than four months and being determined to act upon his Oath.
144. It is an undeniable reality that sexual hunger between male and female is a natural desire.
145. Therefore, Islam does not permit any of the supposes to deprive the other from this natural aspect.
146. On account of this reason if any husband takes oath to deprive his were from this right and is determined to stick to his oath then separation between the two is ultimate result of such conduct.
147. According to the views of the Hanafis, separation automatically takes place after expiry of four months as an irrevocable divorce but according to Shavies, Malik is and Hambilis, the matter would be put before the Court. The Qazi on presentation of such case, shall ask husband to resume his seual relations with his were. In case the husband does not comply with the orders and even refuses to divorce her, the Qazi shall himself dissolve the marriage which is termed as Faskh-e- Nikah. Notwithstanding to the difference of opinion, as stated above a bare reading of the verse shows that consequences of Oath would start after the expiry of the stipulated period of four months hence , the verse has to be interpreted in the light of this important aspect. However important point, which always agitated in my mind is to find out the consequences if any husband, without taking any oath for abstention, keeps his were deprived from her sexual rights without any cause. Similarly several persons coming from foreign countries get themselves married and then leave for the foreign countries without taking their wives with them due to which the wives go on rotting and waiting for their husbands to retrn. These issues are very serious and all sensible jurists are required to consider these issues and their consequences in the light of problems faced by large number of families. I am of the view that purpose appearing from the verse is not to desert wives for more than four months and so far as oath is concerned it reflects intention of the husband. Therefore, according to the principle that acts depend upon intentions, depriving wives from their sexual rights even with or without taking oath for abstention, from my point of view has also the same effect. It is important to point out that when a person takes an oath, he makes Allah a witness to do or not to do any act and therefore he is bound to stick with his obligations according in the following verses of the Holy Quran.
148. O'ye who believe fulfil your obligations (5:1)
149. "And fulfil (every) engagement for (every) engagement will be enquired into (means on the Day of Reckoning (17:34)
150. (Act ojfbJtisy)jjjU)l llj*** ajM' J if j tj (rr^fjci/-'(*"'')
151. (f^' {{ Arabic Text }} Therefore matrimonial relations are of such importance that Islam permits not to fulfil that oath and the Holy Quran, therefore, speaks that Allah is Oft-Forgiving ^nd Most Merciful, In such cases Qazi plays the main role but if arbiters are appointed, they can also play very important role. On account of their role, either the husband will return to his were or divorce her. In case he neither verutum nor divorces, the Qazi would dissolve the marriage and it would called "Fash-e-Nikah".
(b) Another form of divorce prevailing in the pre-islamic society was to declare were-similar to a sister, mother or daughter etc. For example if any husband compared his were to a woman or compared any part of the body of a woman who is permanently forbidden to him then such declaration was called Zihar. The word Zihar has been derived from the word Zahran which means"back". It was custom in pre- islamic Arab Society that whenever any husband wanted to divorce his were he used the following or similar other words: The concept behind this type of divorce is that as an adult man cannot ride upon the back of his mother or sister like a husband on the back of his were, therefore such words were always considered "divorce" and it was named or termed as "Zihar". Such type of divorce was an irrevocable divorce for ever.
152. You are like the back of my mother for me. {{ Arabic Text miss }} Islam did not accept it as "divorce". However if any husband addresses his were and says: You are like my mother or sister or stated Your specific part of body is similar to my mother's part, then it will be called Zihar as it was generally called in pre-islamic period but in Isl&m, the effect of Zihar keeps the marriage contract intact although sexual relationship is forbidden til such time the husband expiate the transgression as fixed in the Holy Quran in its verse 3 and 4 of Surah 58. The law of divorce in the form of Zihar has been mentioned in verse 2 of the same surah as weli as in verse 4 of surah 33. I do not consider it necessary to give the details of difference of opinions expressed by jurists regarding Zihar but, the main point, which l want to stress is that the Qazi or Judge as well as the arbiters, if appointed, can play very important rile by forcing the husband on the complaint of woman to expiate the transgression. If the husband is determined not to expiate, then his intention is evident. In such cases I am of the view', that if any such case is brought before a Qazi then, the Qazi (Judge) must ask the husband to divorce his were. If the order of the Qazi is complied with, it would be termed as "divorce" and in case to non-compliance of his order the Qazi shall exercise his power to get the marriage dissolved and such disslution would be termed as Faskh-e-Nikah.
(c) Third type to divorce is and had been the result of sexual dissoluteness prevailing and expanding in the so-called advanced societies and countries under the garb of "freedom of sexual rights". This moral disease initially spread due to strict rules of marriage and divorce and has now taken the shape of canceration in the form of adultery and homosexuality in licensed or illegal brothers in majority of the countries. To curb such sexual immodesty several tribal areas adopted its on system. 1 have discussed this aspect in the case of Sohrab Vs The State PLD 1994 Kar. 431 with reference to the concept of lian.
153. In Islam, when spouses imprecate each other before a Qazi then separation is must between the two. Generally the Qazi exercises his powers to het their marriage dissolved and it would be called Faskh-e-Nikah. However before the pronouncement of decision, if the husband announces that he is divorcing his were, then separation would be called "Talaq" and not "Faskh-e- Nikah". Such separation shall be irrevocable. In all such cases question of appointing arbiters as pre-condition of separation as discussed in para 21 above does not arise. In this regard it would advantageous to reproduce few lines from a Hadith of the Holy Prophet (peace be upon him) numbered as 283 is Sahih-ul-Bokhari, Vol.III(Urdu-Arabic) published by Darul Ashaat Karachi in Chapter 184 on page 147/148 where it is mentioned that one companion of the Holy Prophet namely overtime came to the Holy Prophet peace be upon him) and asked him.
154. " 0, Messenger of Allah, ( What you say about) a person if he say his were in the company of another person? Whether he should murder him? But (in such case) he would also be murdered (under the law of Qisas/Retaliation). Then what should be done by him?
155. The Holy Propter (peace be upon him) said, "IT has been revealed (from Allah) in this Matter related to you and your were. Go and bring her.
156. It is stated by Sahl that I was also present with other close to the Holy Prophet (peace be upon him) when both of them did lian After they were discharged from Lian, overtime said "o" Messenger of Allah, if I keep her with me than it means that I am- a liar". Thus he divorced her three times before any order him could be passed bv the Holy Prophet (peace be upon ) (onderlininc is mine-)
157. Jtlt V Jail f' J>4*1 J )>' J-,U-* J w'j'1*1"-* "*U t^*) ',U, J>,j jl<" wUlNUaUl^aUIJji-j.^WIAl-mJi-J^WdlJ^ UWl4lU. Jl**r.l {{ Arabic Text }} It is evident from the underlined portion that the husband divorced his were before order of separation between the spouses could be passed by the Holy Prophet (peace be upon him). In this case if the husband had not divorced his were the Holy Prophet (peace he upon him) would have ordered separation between the spouses as can be derived from Hadith No. 280 on page 147 from the same book wherein it has been mentioned that: "One companion of the Holy Prophet (peace be upon him) levelled changes of adultery against his were. The Holy Prophet (leave by upon him) asked them to take oath and then brought separation between the two. {{ Arabic Text miss }} The case of overtime as quoted above was also mentioned in a Hadith numbered as 1706 on page 371 in Sunnan Nissai published by Darul Ashaat Karachi regarding divorce thrice at a time. Which issue would be discussed in forthcoming paragraph.
25. Although adultery in any shape has never been appreciated in any civilised society yet sexuality and its lust is treated so sweetish in most of the countries that not only licensed brothels have been opened in big countries but such facilities are commonly made available in all four and i.e "Stars" hotels in every country of the world except in those countries where Islamic Laws regarding adultery are applicable. But this reality can also be not denied that availability of harlotries under cover is not rule out there too. Hence, it cannot be said that any country is free from this sin. However, in all such matters the rich can tranquilize their appetite for jovialities of sexuality on (he strength of sparkling glitter of wealthiness as, when and anywhere they with while the poor appease this hunger whenever they are fortuned.
158. Regarding the subject in had, it may he sufficient to say that spouses charged with allegations of adultery are treated competent witnesses in Islam but only against each other and their separation, soon after their statements on oath regarding charges of adultery, is inevitable. The procedural steps to be adopted in such cases are fully prescribed in verse 6 to 8 of Surah 34.
159. It is necessary to point out that the sentence of adultery in Islam is stoning to death and same was the punishment in pre-Islamic sacred religions. Reliance can be placed on Hohn 8.3.9. (New Testament of the Holy Bible) which runs as under: .......... The teachers of the law and the Pharisees brought in a woman caught in adultery. They made her stand before the group and said to Jesus, "Teacher, this woman was caught in the act of adultery. In the Law Moses commanded, us to stone such women. Now what do you say? "They were using this question as a trap, in order to have a basis for accusing him.
160. But Jesus bent down and started to write on the ground with his finger. When they kept on questioning him, he straightened up and said to them, "If any one of you is without sin, It him be the first to throw a stone at her." Again he stooped down and wrote on the ground.
161. At this, those who heard began to go away one at a time, the older ones first, until only Jesus was left, with the woman still standing there....
162. Note: The word Law used in the above para refers "Taurat"
163. In the case of adultery, if any husband apprehends his were and also succeeds to produce the required number of witnesses in accordance to Islamic Law, then sentence adultery can be imposed. In case a husband fails to produce the witnesses then he can be convicted under offence of Qazi of (Enforcement of Held) Ordinance 1979. However the Law of Lian can save the husband from punishment but in that case marriage has to be dissolved because it is against the nature of human-beings to expect that the spouses jean live together happily after such changes. There is no "difference of opinion" among the jurists on the point of separation in such cases except on the following points; Hanifis view: Separation would be affected only when it is ordered by Qazi and mere "Lian cannot be sufficient for separation.
164. Malik is and Hambilis view: As soon as the were takes oath against the allegations levelled by her husband the Qazi would dissolve the marriage.
165. Shafies view: As soon as the husband takes oath leveling charges of adultery against his view separtion would take place with immediate effect.
166. From different Ahadith, it is evident that separation was effected by the Holy Prophet (peace be upon him) after the spouses took oath. 1 could not find a single incident where the Qazi might have refused to affect separation inn such matters or in which separation might have taken place without referring the matter to the competent authority. Hence separation in case of lian has -to &e affected by the Qazi no matter the husband consents or not. Such separation will be called "Faskh-e- Nikah" and not" Talaq" except in a case where any husband pronounces talaq. Reference in this regard can be made to the Hadith referred in para 24(c) above where the husband divorced his were before the decision of separation could be pronounced by the Holy Prophet (peace be upon him).
26. I consider it necessary to point out that the word "Talaqa" means "to become free" while the word Tullaqqa means "to free". Thus the word "Talaq" in its, literal or verbal sense means "freedom".
167. Therefore, when separation between the spouses takes place, the same in its conventional meaning, is also termed as "Talaq" because the husband and the were becomes free from their "matrimonial bond". No one can dispute that true import of any word or phraseology cannot be always the same in its literal and conventional senses. For example the Arabic words "Sallu, in its literal sense, means send blessings as is evident from the following verse.
168. "Allah and His Angels send blessings on the Prophet. O' Ye that believe! Send Ye blessings on him and Salute him with all respect. {{ Arabic Text miss }} But the word in its conventional sense has different concept which is used for prayers done by the Muslims in mosques or in houses at specific times. Similar is the position of word. Zakat, In its literal sense it gives the meaning of sanctity. For example: The Holy Quran speaks: Hast thou not turned thy vision to those who claim sanctity for themselves. Ney, but Allah doth sanctity when he plea seth but never will they fail to receive Justice in the least in little thing. (4:49) {{ Arabic Text miss }} But in its conventional sense, the meaning of Zakat is known even to a common man. On the same proposition, the literal sense of the word "Talaq" is "freedom" but in its conventional sense it means "separation" between the spouses which takes place when the same is pronounced by a husband.
169. The misunderstanding started when the religious decreers started advocating this word in favour of the husband by giving an impression that after marriage a were becomes a prisoner of a husband and talaq is the substantial and exclusive right of husband to free his were. This is the background that pro-males religious decreers did not hesitate to translate the words Urdu means in what she gives fidya as Urdu as stated in this judgment in para 3 above. 1 have no hesitation to opine that "Talaq" has to be pronounced by a husband and not by a woman but it is a "procedural right" of husband to pronounce separation, In case a husband avoids to do so or refuses to pronounce separation when ordered by a Court and the Qazi considers that separation is required by Law, then the Qazi shall dissolves the marriage. Such separation shall be termed as "Faskh-e- Nikah" . The true concept of procedural right, with reference to procedure and right can be understood in the light of Judgment reported as C?Ul Hussain Khan Vs Government of Pakistan and another in PLD 1980 Pesh. 1.
170. From the above-discussion it is evident that different terms used for separation of spouses were intermingled with an intention to give an impression of monopolism of men over women. This difference of Talaq by husband and Faskh-e-Nikah by Court, as explained above, was not made clear by the concerned persons at the time of discussing the issue of separation by way of khula or through other mode of divorce and on account of this reason different verses were given different meanings by the Jurists in their commentaries on the Holy Quran Particularly in respect of verse 229 of Surah II, which speaks:
(i) A divorce is only permissible twice;
(ii) -After that, the parties should remain together on well recognised custom or separation with grace.
171. (i.e) It is not lawful for you (men to take back any of your gifts, (from your wives),
(iv) Except when both parties fear that they would be unable to keep the limits ordained by Allah.
(v) If you do indeed fear that
(vi) They would be unable to keep the limits ordained by Allah,
(vii) There is no blame on either of them,
(viii) In what she gives Fidya thereby
(lx) These are the limits ordained by Allah, 50 do not transgress them
(x) And whom transgresses the limits ordained by Allah, it is. They that are the wrong dorees.
172. (2:229)
173. Jmlij jUkJI J ^ W J * JBl WUjU lUiUI j jju i)U *l>to JJ* djUkj^ Jcjyu. Ui i. {{ Arabic Text }} All these points are being explained in the forthcoming paras. DIVORCE PERMISSIBLE TWICE
27. (a) Interpretation of these words of the Holy Quran by certain jurists appears to be very interesting but the said interpretation does not corroborate with Ahadith of the Holy Prophet (peace be upon him). According to these jurists there was system of divorcing wives for more than two times in pre-Islamic age but the said system was banned in Islam on the basis of these words of the Holy Quran. It is known to all of us that there is mention of three divorces in Ahadith. These jurists, therefore, say that concept of three divorces is self-made and has no place in Islam. These jurists generally do not believe in Ahadith. Hence tl^e concept of three divorces has no place in Islam.
(b) . Second interpretation was deduced by some Jurists on the basis of Ahadith of the Holy Prophet (peace by upon him), according to which the people used to divorce their wives by now and then and before the expiry of Iddat period which spreads over three monthly courses (verse 2:228), they always reconciliated with their wives. The husbands used to repeat this thing again and again so that the wives could not get separation pemamently to get themselves married with any other person, It has been stated in "Ahsan-ul-Taafasir" a commentary on the Holy Quran, that this practice of uncountable divorces and re-compilements was the back-ground of revelation of this verse of the Holy Qur'an, In this regard support can also be sought from a Hadith mentioned in Chapter 133 on page 150, narrated by Hazrat Ibn-e-Abbas, in Sunan Abu-Dawood (Arabic Urdu Edition), published by Darumshaat, Karachi. It has been stated in another commentary, known as Tafseer-e-Sattari by Moulana Abdul Sattar Dehlvi, with reference to Ibn-e-Abi-Hatim that a lady come to the Holy Prophet (peace be upon him) and complained that her husband had threatened her that he would neither divorce her nor keep her with him as a were by divorcing and reconcilement within the period of Iddat as per prevailing custom. This was the background of revelation of this verse.
174. In the light of these references, if can be said tat the words (A divorce is only permitted twice) relate to the divorces in which reconciliation is permitted and after those two divorces, if any person divorces this were then divorce becomes irrevocable. Although difference of opinion has also been shown by different jurists on the duration of period between the two divorces yet the Holy Quran has left no ambiguity on this point as is evident from the following verses: "O Prophet! When Ye do divorce, then divorce them at their (prescribed period of) Iddat and count (their period of) Iddat. (65:1) / . I . * ' {{ Arabic Text }} This order is not only limited for the Holy Prophet (peace be upon him) to be acted upon but the whole muslim community has to follow it.
175. In another verse it has been ordered that: "Divorced women shall wait concerning themselves for three monthly period. (2:228) *}/mill; riklUuJfj (rrA Ac1 t/Yuji) {{ Arabic Text }} It is notable that there is no dispute among the Jurists on the point that divorce be pronounced when a women is pure means free from the period of menses and the period of Iddat would start from the date of pronouncement of divorce. In case a woman has no sign of menses due to some, disease or old-age or on account of some surgical operation (which is very common now-a-days in the cases of uterine Fibroids and among the harlots or the women who are not or no more interested to give birth to children) then the period of menses has to be calculated according to the general principles. In the light of the verse reproduced from Surah 65, it can be deduced that every divorce be pronounced at the time of Iddat. On the strength of this verse it has been urged by certain jurists that duration of time between two consecutive divorces is spread over the period of Iddat and the words " Urdu" of Surah-al-Baqra have to be construed in the light of verse 65:1.
(c) . The question arises when there is mention of only two divorces as is evident from the words then from which verse the concept of third divorce was deduced?
176. It is mentioned in the same commentary i.e. Tafseer-e-Sattari on page 243, related to Sureh-al- Baqra, that such question was also once asked by a person from the Holy Prophet (peace be upon him) and the Holy Prophet (peace be upon him) replied "From the words" means" or separation with grace". 1 would discuss the true concept of these words in detail in the forthcoming lines but, at this stage it is important to point out that these words do not contain the word "divorce" but their conventional meanings have been treated as divorce."
28. | means, that the parties should remain together on well recognised Customs.
(a) The true concept of word Imsak can be deduced from the following verses of the Holy Quran:
(i) . He withholds the sky from leading (22:65) {{ Arabic Text miss }}
(ii) ."So hold thou fast to the Revelation sent down to the verily thou art on stragh way. (43:43) {{ Arabic Text miss }} It was usually contended by the nun-undiverse that if it had not been the "Will of Allah", they would not have worshipped the deities. So they were holding fast with that practice (Q. 43.20.) This contention of the non-believers was turned down in the next two were of the same Surah which speaks: "Have We given them a book before, this to which they are holding fast? Nay! They say, "We found our fathers following a certain religion and we do guide ourselves by their foot-stem (43.21-22) {{ Arabic Text miss }} So the word Imsak used in these verses clearly shows that it means "holding fast".
177. I think that words of the above verse demand every muslim believer to think whether they have to fast a path on which they found their religious decreers and parents or they have to thinks themselves whether a religious decree is right or wrong.
178. (b). The words Marefa or Erfan mean "perception" or sagacity of something after due consideration or to be aware of anything. It is something less than scientific knowledge with its antonym Jahalat means ignorance or illiteracy. The true concept of Marifa can be under stood from the following verse of the Holy Quran which speaks that: "The People of the book know this as they know them on sons but some of them conceal the Truth which they themselves know (2:146) {{ Arabic Text miss }} According to this verse, the People of the Book were fully aware that Holy Prophet Muhammad (peace be upon him) was a true prophet and the Message delivered by him was the same as had been delivered in the past by other prophets. They knew the Holy Prophet (peace be upon him) so fully as they knew their on sons. Similarly concept of several other words used in urdu, such as urf means alias, urf-e-Aaum means generally known, "taaruf and Maroof or Mashhoor-u-Maroof etc. Is known to us because these words are used in our daily life. All these words can Reflect the real import of the word Maroof used in the verse. The word Arif is used by Sufis for a person who possess such religious qualities which can recognize the realities of nature. These qualities are not possessed by common persons Similarly a well known or recognised head of any tribe in arabic is called "Reef as is clear from the following couplet. {{ Arabic Text miss }} These lines, if translated, may read as under.
179. Any nation, may it be most respectable and with its members large in number* but their chiefs, inspire of those realities, cannot be safe from the evils of time."
180. In the light of these commentarial notices on the words and , the actual spirit of the sentence with reference to its context can be stated as under.
181. After the were has been subjected to two divorces, revocable in their nature, th< husband must hold fast his relations with his were according to the well-recognise customs provided the spouses want to live together because if the husband will divorce his were again then consequences would not be the same as in the case o previous two divorces.
29. SEPARATION WITH GRACE
(a) Word "Tasreeh" has been derived from the word' "Assc-rah which is kind o fruitful tree and its true concept can be understood from the following verses of the Holy Quran.
182. "And cattle He has created For you; from them ye derive warmth and numberous benefits and of their (meat) Ye eat. And ye have a sense of pride and beauty in them as ye deriver them home in the evening and as ye lead them forth to pasture in the morning. (16: 5-6)
183. (Underlining is my on). *>*') {{ Arabic Text }} It would be interesting to note that camel is the most beloved animal in the eyes of the Arabs.
184. Therefore they usually assimilated their sweethearts with dromedaries. The Arabic phrase is used when any camel is set free to enjoy the fruit of that specific tree known as Asserah. The verses of the Holy Quran reproduced above gives an impression that, taking of cattle to pasture in the morning, where they had to graze, was a sign of honour and dignity. Another beautiful arabic phrase having this Word is which is used for a dromedary who moves fastly and beautifully
(b) Now come to the word (Ehsan) used in the verse. Any thing which can provide pleasing and rejoicement is called "Hasan" in Arabic, It may be of three kinds:
(i) A thing which is mentally accepted to be appreciable.
(ii) A thing which could accelerate the feeling of lascivious desires of a person; and (i.e) A thing which is virtuous in the eyes of every sensible person.
185. The word Ehsan is a derivation, from the word Hasan. The antonym of the word is Suyyah . The difference between these two contrary words is radiated by the following verse of the Holy Quran: If some good befalls them, They say, "This is from Allah" But if evil, They say, "This is from the (Prophet) (4: 78) {{ Arabic Text miss }} This verse shows the character of Hypocrites. Hence Allah shattered the false impression propagated by the hypocrities in the following words by addressing them that: Whatever good, happened to the is from Allah, But whatever evil happens to the is from thy (on soul (4:79). {{ Arabic Text miss }} Similarly meanings of several other words such as Husn Haseen and Haseena can be easily understood by every common person. These words were also derived from the same word. But the true concept of word Ehsan in the verse under discussion can be understood from the following verse of the Holy Quran which speaks that: Verily Allah commands Justice and gratitude. (16:90)
186. I,-' ~ - " 1 iv(/i !
187. (<*>bcfJ'tjr') {{ Arabic Text }} The word Justice reflects the concept of equality i.e. To give to others according to their rights and to get from other according to on's rights but the word Ehsan reflects an idea of giving more than one's right. The people who possess these qualities are called Mohseneen and they are loved by Allah, (Q 2:195) from this word, the concept of Mohsin-e-lnsaniat used for the Holy Prophet (P.B.U.H) can be easily understood.
188. I have tried to explain the real concepts of word Imsak, Maroof, Tasreeh and Ehsan used in the verse under discussion from Mufridu! Quran by Imam Raghib Asfahani. From these commentarial notes relating to these words actual spirit of the sentence with reference to the context can be summarised as under: After the were has been subjected to two divorces, revocable in their nature, if the husband cannot keep her as his were, then he must leave her free in such manners which could reflect the sense of pride, beauty and gratitude, i.e. Free from all such kinds of evils as are usually observed by the parties as soon as the disputes arises between them. This provision of law has also been described in verse 2 Surah 65 i.e. In the following words.
189. Either keep them or part with them according to the recognised custom. {{ Arabic Text miss }} In this verse, word "Farequhunna" has been used instead of the word "Tesreehun" as has been used in the verse under discussion. The word has been derived from the word Al-Farq which in arabic gives the concept of "Shiqaq and in urdu the words mean split or cleave. The well known miracle of the Holy Prophet(peace be upon him) according to which the moon splitted is, therefore, known as "Shaqul-Qamar. It is necessary to point out that the divorced were must remain in her husband's house ti l) expiry of Iddat. The provision of law is illustrated in the case of a lady reproduced in chapter 196 on page 155 of Sahih-ul-Bokhari in three traditions numbered as 296- 298 in Kitab-ul- Talaq (Arabic-urdu edition) published by Dar-ul-Ashaat, Karachi. The said case can be summarized as under.
190. Yahya-bin-Saeed -bin-al-Aas divorced his were who was the daughter of Abdul-Rehman's-bin- AI-Hakam. Abdul-Rehman's took his daughter from the house of her husband to his on house. This matter was brought to the notice of Umul- Momeeneen Hazrat Aisha (R.A) before the expiry of Iddat of that lady. So Hazrat Aisha (R.A) sent message to Marwan, who was Amir (means head) of Madinah, that the divorced lady be sent to the house of her husband to spend the period of Iddat.
191. Marwan chenet a reply to Hazrat Aisha (R.A) that Abdul Rehman's-bin-Hakam was not ready to do so. It appears-from the traditions that case of one Fatima-bint-Qais used to live was also referred by Marwan who had not spent the period of Iddat in her husbands house. Hazrat Aisha said that case of Fatima-bint-Qais was not applicable to this case, hence it was not good to refer that case, because the house where Fitima- bint-Qais used to live was a deserted house from all sides.
192. Therefore she had been allowed to spend the days of her iddat in her father's house".
193. It is thus evident that circumstances and facts of every case may be apparently the same but each case has to be decided on its on merits. The provision of law of Iddat that a were must spend the period of Iddat in her husband's house is evident from the following verse of the Holy Quran which speaks that: And fear Allah your Lord and tum them not out of their houses nor shall they (themselves) leave except in case, they are guilty of some open lewdness. Those are limits set by Allah....."(65:1)
194. JUkJli./r {{ Arabic Text }} This verse was quoted in Chapter 196 on page 155 in the above-mentioned edition of Shahih-ul- Bokhari to explain the law of Iddat. But, inspire of this provision of law, the case of Fatima-bint-Qais was decided contrary to the above provision of law as facts and circumstances of Fatima's case were different. Admittedly that was not the case of open lewdness.
30. '/ . - \ '
195. I 'C* JmiUi / {{ Arabic Text }} means it is not lawful for you (men) to take back any of your gifts form four wives.
(a) The part of verse marked as III in para 26 above appears to be in continuation of the first two parts marked as (i) (ii). According to this part one of the recognized principle to be kept into consideration at the time of separation of the supposes is that the husband should not take back any of the gifts given to his were because, in Islam, such as act is not lawful. The only exception to this provision of law is open lewdness by the wives but the same must not be based on false accusation. The following verses of the Holy Quran further Sic provision of law in the following words: "O ye who believe ! Ye are for-bidden to inherit women against their will. Nor should ye treat them with harshness, that ye may take AND part of the dower we have given them except when they have been guilty of open lewdness. (4:19) {{ Arabic Text miss }} Even if you had given the latter a whole treasure for power, take not the least bit of it back. Would you take it by slander and a manifest wrong (4:20)
196. (underlining is my on') #U J 'Ufc* ti U* '1 jlW fnfIJ {{ Arabic Text }} Thus the law of Allah is not to deprive a were form any of those things which were given to her by use of force in the shape of Harsh treatment or by levelling false allegation of open lewdness.
EXCEPTIONS
(b) It appears from verse 229 of Surah 2 of the Holy Quran that there are two exceptions to the above mentioned Law of Allah i.e. Not to take back any thing what was given to wives by husbands.
197. These exceptions are:
(i) It the spouses are nable to live within the limits prescribed by Allah then they can get back gifted articles from each other. .
(ii) If a were demands separation from her husband then she has to return what was gifted to her.
198. I shall discuss only the first exception in this para because the second exception is being discussed in the next paragraph. As stated earlier this exception can be read with the words of verses reproduced from verses 19 and 20 of Surah 4. This bitter reality is known to everyone that majority of the ladies in the European countries do not consider sexual freedom to be a matter of shame.
199. The muslim-families settled in such countries are mostly found upset on account of their un- married girls because their marriages have become a very serious problem. The number of virgin male and females is reducing day by day in most of the countries. The stormy waves of this venomous atmosphere mostly established by the attractive goddesses of fashionise are not strong the they can even engulf the virtuousness of hermits to This storm has already entered into the places of royal families of European countries. In such state of affairs, number of disputes between the spouses is increasing day by day because acts of the espouses, or any of the two, are mostly found bedground the limits ordained by Allah. In such cases the gifted articles may be retained by the concerned parties. I am of the view that even in such cases the concept embodied in the words as discussed above cannot be shattered and the dispute has to be solved according to the recognized and appreciable principles radiated by different verses of the Holy Quran.
31. The next four parts of the verse 229 of Surah 2 are veery important for the subject under discussion because difference of opinion on these parts of the verse marked as (v) to (viii) in para
26. Is very deep and controversial among the jurists. Hence I would deal it in detail on account of several important points. In this part "demand for separation is made by the were. If the were feels that she would be unable to keep herself within the limits ordained by Allah in case she lived with her husband then she can demand divorce from her husband.
200. It is common and known factor that at the time of marriage a husband pays power besides several other gifts to his were which are treated to be the property of that woman. In the present age most of the beautiful ladies of advanced families remain ' in search of rich husbands to enjoy a curious life on the strength of richness of their husbands, In this connection 4 need not to refer the cases of several well known or the richest religious and political leaders of the world with whom such ladies got themselves married and also succeeded to get movable or immovable properties as well as big piece of their wealth from their husbands. After spending sometime with their husbands their demanded divorce through Courts with intention not to return anything out of those properties or wealth, It has been experienced that in most of these cases, the wives not only succeed to geet separation from their husbands through the courts but also succeed to deprive their husbands from those properties too on the strength of such prevailing laws which are in favour of such ladies in most of the advanced countries.
201. But the religion of Islam has its on provisions of law in such matters which have been radiated in this part of the verse under commentarial discussion. The second exception, mentioned in the preceding para, relates to such situations and according to that exception there is no balame on either of the espouses if the gifted property or part of it is overed by a were to her husband at the time of demanding separation. The Holy Quran has used the word Fidya for the said offer which has to be made by were to her husband to seek separation.
32. I have translated the words of the verse under discussion as " in what she gives "fidya" thereby", It is not feasible to reproduce all those translations done by different jurists or commentators in their commentaries, however it may bee advantageous to refer few of those translation to show how the jurists, went on interpreting these important words.
202. Urdu translation.
(b) _tr s'-ssfatt-^M s' {{ Urdu text }} Urdu The last lines containing the word have been taken from the translation done by the religious decreers and writer of the article mentioned in para 15 above.
203. English Translation
(1) (2)
(3) By Mirza Bahiruddin Mehmood S/o Mirza Ghulam Ahmed Qadiani
(4) By Muhammad Ashraz who translated
(5) Tafseer-r-Usamani of
(6) Moulana Shabhir Ahmed Usmani
(7) By muhammad Ali Lahori founder of Lahori ' sect of Mirza Ghulam Ahmed Qadiani.
(8) Translation published by DAr-al- Andalus Gilbralter.
204. (9)
(10) . In what she gives to get freedom.
(11) . The woman obtains release by giving ransom.
(12) What she gives up to become free thereby.
(13) What the were gives up (to her husband) is order to free here self.
205. The translated numbered as (3) and (4) above appear to be the same. It would bee sufficient to any that there is much difference between "give up" and "give : back".
(2) She gives back (the Mahr or a part By Dr. Muhammad Taqi-ud- Din Al- of it) for her Al-Khul (divorce) Hilani Ph.D. (Berlin) and Dr. Mohsin Khan.
(6) Wife shall here self give for her B^ J.M. Roswell. Redemption.
206. From these translations it is evident that the translation of the words went on charging from Fidya to Muawiza, from Mauwiza to redemption, from redemption to ransom and from ransom to "Matrimonial imprisonment".
207. Thus the impression given in these translations appears to have been adopted to establish monopoly and domination of the males over the females in respect of matrimony and separation between them. Perhaps the concept of Fidya was picked up by the decreers from Battle of Badr.
208. It is Mentioned in all the books of history that word "Fidya" was used for the release of prisoners of war caught in the Battle of Badr (02 A.H./January 624 A.D) According to Tareekh-e-Tibri 44 prisoners were captured by the muslimes. Hazrat Umar suggested to execute them but Hazrat Abu-Bakr suggested that they be released on payment of ransom (Fid) a). The Holy Prophet accepted the suggestion of Abu-Bakr (R.A.) The relatives of some of the prisoners approached in their individual capacity such as Al-Matlib who approached the Holy Prophet (peace by upon him) for the release of his father Wida's -bin- Khabira. The Qursh also sent a delegation to the Holy Prophet (peace be upon him) for fixing the amount* of "Fidya". But the most important decision was taken in the cases of poor prisoners who were unable to pay anything on account of their poverty and the prisoners who wer well-known for their brutalities, It appear from different books of history that out of those prisoners only two, namely AI-Na/ar and Uqba, were executed on account of their parts history of brutalities while the prisoners who could not pay were asked to teach reading and writing to the children of the Muslims. Hence these services of teaching, rendered b\ the prisoners, were treated nothing but "Fidya". Undertakerly the said concept of Fidya was treated to be applicable in each and every case by certain jurists as can be ascertained from the translations given in the beginning of this para. The question arises whether the concept of Fidya as reflected during the Battle of Badr can be used in each and every case particularly in the case of "KhuJa" where the religious decreers have used the term for those poor married ladies who decided to get themselves married. Perhaps the learned decreer had never tasted the pains of imprisonment otherwise he would not have used the term "imprisonment" for a sacred contract.
209. Unfortunately such hated concept was drawn from the literal sense ol the word Fidya with reference to the context of war and not on the basis of its conventional sense with reference to context of matrimonial contracts. In support of this views several empales can be quoted to show that verses of the Holy Quran can be explained on the basis of conventional meanings of the words and not on the strengthful literal or verbal sense: Similarly, besides their translation into any language or the commentary of any of the jurists cannot be accepted to be authoritative if the said commentary is conflicting with other verses of the Holy Quran or contrary to the decisions of the Holy Prophet (peace be upon him).
210. In support of this proposition would like to give an example, I lie word "Wala" is common in Arabic and Urdu. In urdu several words can be derived from this word such as "Wafat means death, "Wadah Wafa means fulfilment of promise, It is thus clear that the word in urdu may have different conventional meanings although its literal meaning is "fulfilment". Similarly in the Holy Quran this word was used in different forms with different meanings. For example one of the were. The Quran speaks that:
(i) And to those who believe and work righteousness Allah will pay them, (in full) their reword.
211. (3:57). {{ Arabic TEXT miss }} In this verse the word " Urdu " has been derived from the word wafa with meanings of "Rewarding in Full", In the same sense it was used in 4:173, ll:IH (III ), 24,25, 35:30 and 46: 19(19)
(ii) Another verse of the Holy Quran speaks than: And to every soul will be paid in full (fruit) of its deeds, and (Allah) knoweth best all that they do"
212. (39:70).
213. (4* &c'/ {{ Arabic Text }} In this verse the word Wuffeyat was derived from the word "Wafa" with meanings of "payment in full". This word in the same sense was also used in 3:25. It I very important to point out that if only one word [s separated from these verses then both these verses give different meaning. The verse of Surah Al-Zumar contains the words. (Ma-kasaba ma amatat) and verse of Surah Zumar contains the words. If the word means has earned " or" means "has done" are separated from these verse then th remaining words i.e. Would give the meaning of "death of every soul". IT is thus clear that separation of one word is sufficient to change the meanings of whole verse.
(ii) Another verse of the Holy Quran speaks that: "O' Ye who believe ! Fulfil (all) obligations (5.) if \ *-' {{ Arabic Text }} ' In this verse the word was derived from the word "Wafa" with a commandant that believers must fulfil their promises. This word in the same sense appears I several verses including verses No. 16::9l and 17:34.
(i) Another verse of the Holy Quran speaks that: Give full measure when you measure and weigh with a balance that i. Straight. (17:35). {{ Arabic Text miss }} It is thus clear that .The word was used in two joining verses i.e. Verses 34 and 35 of Surah 17 but in two different meanings. In one verse it was used for the "promises" while in the other it was used for "measurements" and "weights". Verses 6:: 152 and 7::85 can also be referred which contain the same words.
(ii) In another verse the Holy Quran speaks .
214. It is Allah that takes the souls at death and those that die not. (He takes ) during their sleep. Those on whom he has passed the decree of death. He keep back (from returning to life) but the reest he sands (to their bodies) for at termed appointed. (39:42)
215. J* > u J1 >'U. J- M J 1W* irJ31 *11-1u* '5*" i*1 1s ^ J^ {{ Arabic Text }} In this one verse the same word "yata' laffa" was used in two different senses i.e. One in the sense of death and the other in the sense of sleep, In the light of these verses of the Holy Quran it is evident that one word can be used in different senses and the real import can be ascertained only from reference to the context.
216. On the same proposition the word "Fidya" used in the verse under discussion can be construed and properly understood.
33. Marriage cannot be equated with adultery on account of one common factor of Jema i.e. Copulation to satisfy the sexual Just, Marriage is a sacred contract which depends upon the consent of the parties on certain terms and conditions permitted by Islam. After marriage, this contract attracts benefits of their children as well as several duties to be performed by them.
217. Hence it cannot be presumed that this contract can come to end as and when any husband wants to finish it but the were is totally at the mercy of the husband if she so desires. Such presumption is not supported by the Holy Quran. The Nikah in Islam has been described as "Mesaqtin- Ghaleez" means "solemn covenant" . The true concept of these words can be understood from the following verse "and remember, we took from the Prophets their covenant as we did from the, from Noah.
218. Abraham, Moses and Jesus the son of Man; we took from them a soln affirmation. (33:7). {{ Arabic Text miss }} From this verse of the Holy Quran it is evident that covenant of the Prophets given to Al-Mighty Allah was termed in the Holy Quran as and same term was used to show the importance of Nikah.
219. Could such covenant be left at the mercy of husbands? My answer to this question is a big "No".On the basis of propositions as discussed above, the true concept of separation when demanded by any were from her husband, which is termed as "Mubarat or Khula" can be easily understood.
220. In case of "Nikah", offer usually comes from husbands who pay dower as well as other gifts. A were cannot be permitted to take away everything if she does not want to live with her husband.
221. Therefore, in case she demands separation from her husband and wants to end the sacred contract of matrimony then she has to offer somethings to her husband. That something may include the same dower or other gifts etc. This offer is called "f-idy a". Thus it can be said that Mehr is offered by husbands at the time of proposing Nikah and Fidya is offered by wives at the time of demanding separation. However, if the husband agree to separate -his were on her demand without accepting the offer of his were, he can do so but in that case it would be necessary for him to pay dower amount to his were.
34. This simple provision of law and true concept of the words can be also explained in the light of several incidents mentioned in Ahadith of the Holy Prophet (peace be upon him) but only two rue mein pioned hereinbelow.
222. The case of Jamila were of Subir-hin-Qais reported in different books of Ahadith is the best example to explain mis provision of Islamic Law. The said lady approached the Holy Prophet (peace be upon him) and expressed her intention to get herself separated-from her husband. The conversation which took place at that time is mentioned in different Ahadith. Including Sahih-ul- Bokhari. The relevant words of the Hadith mn as under: She said. "O Messenger of Allah I do not reproach Sabit in respect of character or religion but I do not want to be guilty of infidelity in Islam (so) the Messenger of Allah said to her'"Would you give him back him garden0 She said. Yes' The Messenger of Allah said "Accept the garden and give her otic Talaq.
223. (Underlining is my on) {{ Arabic Text miss }} In place of the underlined portion, following words appear in another Ahadith.
224. So she returned it to him and he (the Messenger of Allah) ordered him and he separated her. {{ Arabic Text miss }} All ahadith having mention of this incident were reproduced by Hafiz-the- Hajar-Askar lam in Fnth- ul-Bari, commentary on Sahih-ul-Bokhari. They are mentioned on page 496 in volume X in Chapter 12 where they were numbered as 5273-5277 in the Edition published by Darul-Fikr, Beirut (lebanon).
225. In Sunnan Nissai this incident is mentioned 6n page 392 Volume 11 (Arabic-. Urdu-Edition) published by DArul Ashaat Karachi.-In Sunnah Ibn-e-Maja in place of the above underlined portion, the following words appear.
226. "So the Messenger of Allah ordered him, "Have from her (your garden and nothing more. {{ Arabic Text miss }} (Hadith numbered 2056 on page 126-127 Volume II (Arabic-Urdu edition) published by Islamic Academy Urdu Bazar Lahore)
227. The next Hadith in the same book numbered as 2057 on page 127 relates to another lady namely Habib-bint-Sahl. The conversation of that lady with the. Holy Prophet (peace be upon him) and the decision of the case appears as under: She said, "O, Messenger, of Allah By Allah. If I did not hearing Allah. I would have spit (can be spat also ) at his face when he comes to me".
228. The Messenger of Allah said. "Will lyou return his garden to him? She . Said. 'Yes'
229. So she returned his garden to him and the prophet of Allah separated them. {{ Arabic Text miss }} In Sunnan Nissai the case of Habib-bint-Sahl is mentioned on page 391 in a Hadith numbered as 3495 volume II (Arabic Urdu Edition) Dar-ul-Ashaat Karachi as under; One morning the holy Prophet (peace be upon him) came out (of his house ) for morning prayer and found Habib-bint-Sahl near his door. After knowing that she was Habib-bint-Sahl.
230. The Holy prophet asked her what had happened to you She said. Neither I can live with Sahl nor he can live with me." l*Tj> Jr {{ Arabic Text }} On account of the case Sabit-bin-Qais came to Holy Prophet (peace be upon him) and he was told what Habib and stated before the Holy Prophet (peace be upon him) then Habibah said,"
231. "O' Messenger of Allah what he gifted to me, is all with me.
232. So the Holy Prophet said to Sahit, "Take from her (your things ) so he took (those things) and she went to her relatives. \ I j t#' i*u .Jjut is^tkiujj* IV- -T, .... {{ Arabic Text }}
35. However, there is difference of opinion among the jurists about the quantum of "Fidya". In most of the books the views of different Imams have been stated as under.
233. According to Imam Malik and Imam Shaft, the husband can get more, equal as well as less than Mehr.
234. According to Imam Abu-Hanifa, if the "Nashaz" as explained in para 23 above, is from the side of the were, then the husband is entitled to get more than dower given by him to his were and if "Nashaz" is from the side of the husband, then it is invalid for the husband to get anything from his were.
235. According to Imam Ahmed-bin-Hambal, the husband can get fidya equal to Mehr. For the purpose of reference Meezan-ul-Kabra by Al-Shuran and Hidaya can be Sh. C. 119 referred for the above mentioned views in support of the Hambili and the Hanafi's views respectively.
236. (mam Ibn-e-Qayyum has also discussed is aspect in Zaadul-Mead on page 35 in Volume 2 published from Egypt. In Tafsir Al-Bahrul-Muheet by Abi-Hayan-al- Undlasl the views of different persons were mentioned on page 208, Volume II in its first edition published in Arabic from Beirut (Lebanon), Instead of reproducing the" Arabic text, I consider it sufficient to give its English translation in the following words"
237. "The first view if that husband can get Mehr as well as all those things which} he had given to his were. This views is stated to be of Umar, his son , Usman , Ibn-e- Abbas, Mujahidin, Akramah, Nakhee, Hasan , Qabeeza-bin-Zuaib, Malik on Abu- Hanifi, Shaife and Abu-Saur.
238. The second view is that nothing more but only "Meher" can be returned. This view is stated to be of Ali, Taus Sumer-bin-Shaib, Ata, Zahri, for-ul-Museeb . Shaabi, Hasan , Hakam, Hamad Ahmad, Ishaq anc lbn-e-Rabee and according to another version, same is the view 6f Abu Hanifa."
239. The third view is that some part of the Mehr can be taken back and it would not be valid to take the whole if the spouses have lived together. Therefore, some pari must be left with her as both of them have enjoyed the company of each other.
36. Most of the learned Jurists who are basically pro-male dominated societies have also stressed that Hadith related to the case of Jamila were of Sabit-bin- Qais (mentioned in the beginning of para 34 above) contains the words means" give her one divorce which),show that it is the right of the husband to divorce. If if had not been the right of the husband then the Holy Prophet (peace be upon him) would have ordered that the spouses are separated.
240. With due regards for all such jurists neither could embrace such view related to the right of the husband or of the Qazi nor I could find myself to accept any of the views regarding quantum of Fidya.
241. So far as the Hadith of the Holy Prophet (peace be upon him) is concerned, it speak itself to reflect the whole cace The question asked from Jamila (the were of Sabit) was i.e. Will you return his garden to him? She said,-yes. Thus consent for the return of the garden was sought from the were.
242. If she had stated "No'!. Or if she has stated that she was ready to return part of it, then in such situation negotiation could be started to decide the quantum of "lldya". However, in the said case.
243. Jamila had agreed to return the garden. After this consent, the I Ic ly Prophet (peace be upon him) did not ask from Sabit whether he was ready to divorce his were or not but asked him.
244. I"accept the garden" and " give het one divorce. These words amount to an order. If all the Al hadith mentioned in different books are collectively taken into consideration then the only impression which is radiated by all those Ahadith is that it was the order of the Holy Prophet (peace be upon him) and this proposition gets further support from the words means (ordered hint) used in certain Ahadith as referred in para 34. The question arises that, if in the present age, a husband refuses to divorce, then what would be the situation? I say that Qazi would exercise his power to dissolve the marriage. I would discuss this point in another paragraph while discussing the words mean if you fear" used in the verse under discussion.
245. In the light of above discussion I am of the view that discretion lies with the wives to return the whole Mehr or its part only. In case there is dispute over it. Then zai can decide the quantum of "Fidya" to be paid by the were in the light ot circumstances or each cases. My reasoning for holding so is based on the following grounds: The Holy Quran asks a question from the spouses in the following words: "And how could ye take it when ye have gone on up to each other and they have taken from you a solemn covenant? (4:21) {{ Arabic Text miss }} It cannot be said that in cases of disputes between the spouses only wives would be at fault.
246. Whether a husband is at fault or his were, but this reality cannot be denied by anyone that both of them lived together on the basis of a contract which has been termed by Allah as Urdu solemn covenant. So it can never be appreciable that a were be forced to pay the whole dower Urdu Similarly this verse be also read with the verse under discussion where return of such things have been permitted subject to the "open lewdness". Therefore I am of the view that if the case of the spouses is not attracted by the charges of open lewdness then consent of the were be sought whether she is ready to return the whole dower Urdu or the part of it. However the discretion wwwould lie with the court to pass an order for the return of whole dower in the light of prayer made by the were in the suit or in the light' ol evidence deduced by both the parties.
30. (a).Regarding this part of the verse under discussion, the difference ol opinion among the jurists is about the addressees At present only two views are prevailing among the jurists.
247. One view is that the addressees of the words "if ye tear" are the spouses; and The second view is that addressees of word "If ye fear" are the "Rulers or Qazia".
248. I think that both these views can be harmonised and on account of that harmonization the dispute between the jurists can be brought to an end.
249. In case the were realizes that she cannot maintain the limits of Allah with he husband, then she can demand separation from her husband.. If separation takes place by the consent of spouses on the basis of certain terms and conditions permitted b\ Islam then it is termed as "Mubarat" and in all such case there would be no need of getting any permission from any Court. In these cases the addresses of the word "If j c fear" would be the spouses.
250. In case the husband declines to accept the demand of separation made by In were on the ground that she cannot live with him within the limits of Allah, then she has no other alternative but to approach the Court further separation.
251. After hearing the parties, the Qazi can suggest the husband to divorce his were and in case of reluctancy shown by the husband, the Qazi would himself dissolve the marriage, In all such cases, the addressees of the words means "If ye fear" would be the Qazi (Judges) of the Court or the rulers.
252. The separation between the spouses as a result of "Mubarat" or in compliance of the orders of the Court would be termed "divorce". In case a husband is found reluctant to divorce his were or is not ready to comply with the order of the Court, then the Qazi would dissolve the marriage himself and it w ould be termed as "Faskh- e-Nikah. I have no doubt in my mind that the case of Sabit- Bin-Qais and his were Jamila was a case of divorce because in that case, the Holy Prophet (peace be upon him) had ordered Sabit-bin-Qais to give her one divorce. Had Sabit refused to obey that order then it could become a case of Faskh-e-Nikah on dissolution of marriage by the Holy Prophet (peace be upon him). In the light of this proposition I am of the view that the addressees of the words" If you fear" used in the verse include the Qazis as well as the spouses on account of two possible situations is discussed above.
253. If someone says that the words" If ye fear " can be limited to only one set of persons i:e. Either for the spouses or for the Qasiz, then I would like to ask from all such persons whether the address in the verse Q; 65: l i.e. Mean "O" Prophet when ye do divorce women, divorce them at their prescribed period" would be only limited to the Holy Prophet (peace be upon him) or shall include the whole muslim community? I, need not to discuss this point anymore because admittedly, in this verse not only the Holy Prophet (peace by upon him) has been addressed by Allah but it also includes the whole muslim community. If we depend upon the literal or verbal meaning of the verses then this provision of law cannot be made applicable in the cases of other muslims. But there is no dispute over it that conventional sense of the verse includes the Prophet (peace by upon him) and his followers to follow this provision of law. On the strength of this principle it can be said with certainty that the words "If ye fear" used in verse 229 of Surah 4 include the spouses as well as the Qazis. Therefore the view expressed by the religious decreers against our Hon'ble Supreme Court of Pakistan is totally baseless. It is interesting to point out that most of the religious decreers intentionally avoid to bring into light the contrary views of other jurists is and therefore, the debate on the issue of Talaq and Faskh-e-Nikah is going on between them since long. The result of such conduct, is obvious i.e. Misunderstanding among the people. The misunderstanding could be removed by harmonizing the two views particularly when they were not the contrary views but only two different views. I think that no such effort was made to harmonise the two views in the past although undoubtedly it was possible. However if any such effort was ever made, it could not come to light and due to that reason the debate was kept limited to a question whether khula is a divorce or "Faskh-e-Nikah.
(b) It is necessary to point out that these parts of the verse under discussion, do not contain the words "Mubarat" or "Khula" but there is no dispute over it that the concept of has been derived from, these parts of the verse. However it may not be less interesting that the word "Khula" has not been used anywhere in Holy Quran in its conventional meaning of separation between the spouses. There is only one verse in the Holy Quran which contains this word Khula ( ). But, in that verse the words Khula has been used in its literal or verbal sense. The said verse speaking as under: Verily I am thy Lord! Therefore (in My presence) put OF thy shoes: thou art in the sacred valley Tuwa( 20: 12)
254. U> j til 4> j>.) {{ Arabic Text }} So far as books of Ahadith are concerned the word Khula ( ) was used mostly in its conventional sense i.e. Separation between the spouses on demand of wives by offering Fidya to their husbands.
38. The provisions of law embodies in verse 229 of Surah 2 (229 Arabic ) and. As discussed above in detail, thus clearly shows that (i) divorce is only permissible twice ( Arabic ); (ii) after that the spouses have to decide to remain together according to the recognised customs ( Arabic ); (ii) or to separate with grace ( Arabic )(iv) the husband has not to take back any of the gifts from a will given by him {{ Arabic Text miss }} unless it is feared that they would be unable to keep the limits ordained by Allah ( Arabic ; (iv) if the spouses or the Qazis fear ( Arabic ) that it would not be possible for the spouses to keep the limits ordained by Allah, (vi) then there would be no blame on either of them (Arabic) if the were demands separation and for that purpose she offers Fidva to her husband (Arabic).
255. All these provisions have been described "the limits ordained by Allah ( Arabic) and transgressors of these limits were termed by the Holy Quran to be the wrong doers (Arabic).
256. It is notable that whenever any of these limits was transgressed, it created complications and problems. This point can be explained with the help of "kinds of divorces with reference to their attribution and their effects. Out of the three forms of divorce only one is admitted to be in accordance to Sunnah of the Holy ,Prophet (peace by upon him) while the remaining are disputed among the jurists. According to the Hanafi School of Jurisprudence, different kinds of divorces, are stated to be as under:
(a) Talaq-e-Ahsan (Urdu) means most approved from the Talaq;
(b) Talaq-e-Husn (Urdu) means proper form of divorce (Ref: A Code of Muslim Personal Law by Dr. Tanzil-ur-Rehman's)
257. So far as Talaq-Ahsan is concerned, there is no dispute among the jurists that attribution of divorce in this from is the most approved from. In this from of divorce the husband pronounces only one Talaq during the period in which the were is free of menstruation. Separation between the spouses starts as soon as the Talaq is- pronounced. After that pronouncement, the options are left with the husband for his re-union with the divorced were i.e.
(i) Reconcilement before the period of Iddat (means three periods of her menstruates if she menstruates otherwise three months) expires; or
(ii) Re-marriage if the period of iddat expires.
258. The case of Rukana is the best example of this form of divorce who had divorced his were for the first time during the period of the Holy Prophet (peace be upon him) Second divorce between them took place during the period of Hazrat Umar and the discussed the said case in para 42(c). It is thus clear that duration of period between the divorces in that case was spread over several years. According to my point of view this is the only form of divorce which can be treated a talaq in accordance to the spirit of Islam, So far as Talaq-ul-Husn (Urdu) is concerned, almost all the sects of muqqaledeen (Urdu) and Ghair Muqqaledden ( Urdu) claim such from of Talaq to be a "Sunnat". Iman Malik is, however, an exception who treated this form of talaq to be a "biddat" means innovation in Islam.
259. The supporters of Talaq-e-Husn usually claim that Harrat Ibn-e-llmer had been ordered by the Holy Prophet (peace be upon him) to divorce his were according to this form of divorce. The Hidaya, describes this divorce as under: "Talak Hoosn. The Talak Hoosn or laudable divorce, is where a husband repudiates any enjoined were by three sentences of divorce, in three Tohrs. Iman Malik asserts that this method classes with the Biddat, or irregular, and that no more than one divorce is admitted as unexceptionable, because, as being in itself a dangerous and disapproved procedure, it is only the urgency of release from an unsuitable woman that can give a sanction to divorce: and this urgency is full Unanswered b\ a single Tohr. The arguments of our doctors on this topic are two-fold: First, a precept of the Prophet delivered to Ebn Amir, "One thing required by the Sonna is that ye wait for the TOHR and pronounce a divorce in each TOHR.
260. (under lining is my on)
261. (Translation reproduced from Hedaya by Charles Hamilton page 72. Second edition published by Premier Book House Lahore)
262. With due respect for the supporter of Talaq-e-Husn, | failed to find out the under-lined words i.e. "pronounce a divorce in each TOHR from any of the main Books of Ahadith. For example this case of Hazrat Ibn-e-Umar appears in a Hadith in Kitab-ul-Talaq in Sahih-ul-Bokhari where it is numbered as 235 on page 121 in Volume III (Arabic Urdu Edition) published by Danial Ashaat Karachi, It is mentioned in that Hadith that Abdullah-bin-Umar divorced his were , during the period when she was menstruating. His father, the second Caliph Hazrat Umar asked about it from the Holy Prophet (peace by upon him). The Holy Prophet (peace b> upon him) issued the following instructions though Hazrat Umar to be conveyed to Abdullah-bin-Umar:- "Order him" (means Abdullah-bin-Umar) return back to her. So keep her till she is free from menstruation.
(Wait) till the menstruation start (again) and she again become free from the menstruation.
263. Jum Jwal"la4 j!,*i jjki J *UI 5a*)l JCui jl J,! Jli 'U jlj {{ Arabic Text }} Now after that keep her or divorce her as you desire but (do so) before you touch her (means before sexual copulation). This is Iddat as ordered by Allah.
264. It is thus clear from this Hadith that the underlined words i.e. "divorce her after every menstruation" are not found any-where in that Hadith. Contrary to that it appears from the Hadith that,
(i) The Holy Prophet (peace be upon him) did not treat any divorce to be divorce if the same was pronounced during the period of menstruation and
(ii) If anyone wants to divorce his were, he must divorce her during the third period of menses.
265. Thus the actual concept of the word ( ) used in Q: 65: 1 ( ) was explained in this Hadith regarding "Iddat".
266. Not a single word in this Hadith gives an impression that talaq be pronounced after every period of menses... It is important to point out that this Hadith is also mentioned in Sahih-ul-Muslim. Thus it is called ( ) means possessing unanimity . On that. Absence of the underlined words in the Hadith mentioned in Bokhari and Muslim is thus not meaningless.
39. Notwithstanding to the above-mentioned reality, it is evident that doors of reconciliation between the spouses are closed after the expiry of 90 days if this kind of divorce is considered to be valid while these doors remain open in the case of Talaq-Ahsan for years till the third divorce takes place, In this connection I would refer the case of Rukana in the forthcoming paras. Same is the position of Talaq-ul- Biddat where doors of reconcilement are closed within few seconds instead of 90 days.
267. Result of all such divorces, which cannot be called divorces according to the Sunnah of the Holy Prophet (peace be him), was always found to be very shocking because the people started searching artifices to get certificate of validity for invalid things even through shameless manners.
268. One of the best example of these artifices in "Halala" (Urdu). It was claimed by the religious decreers that verse 230. Of Surah 2 (Arabic) supports "Halala". I have no doubt in my mind or any hesitation to say that the said verse prescribes a law for valid (Urdu) divorce and not an artifice which is termed as Hilala) (Urdu).
269. In Sunnah lbn-e-Maja ( ) there is one chapter on this issue which is numbered as 33 on page 62, in Kitab-ul-Nikah (Urdu) (Arabic-Urdu Edition) in Volume II published by Islamic Academy Lahore.
270. It may be sufficient to reproduce the following relevant words from few Ahadith. The Ahadith numbered as 1934 and 1936 narrated by the-e-Abbas and ALI (R.A) contain the following words.
271. The Holy Prophet (peace be upon him) imprecated the person ( ) means (who does Halala( and Mohallel-Lahu ( ) means a person for whom Halala is done. {{ Arabic Text miss }} In the next Hadith numbered as 1936. a person who has to perform tins shameless duty were termed "hired bull". The relevant words of Hadith read as under The Holy Prophet (peace by upon him) said, (to his companions) "should I tell you about hired bull? . They said "yes, O" Messager of Allah. The (Prophet peace by upon him) said "He is Mohallil Allah has preacted the Mohallil and the Mohallel Laliu.
272. Thus not only Allah but the Holy Prophet (peace be upon him) also imprecated such persons due to whom the innocent ladies are subjected to torture of shameless act of Halala. In Sunnan Nissa (Arabic Urdu Edition) published bv Darul Ashant Karachi ( Urdu), this Hadith is mentioned in Kitabul-Talaq on page 376. Volume II and is numbered as 3448. It may not be out of place to mention that certain jurists have termed this act to be "adultery". Allama Waheed-uz-Zaman who has written notes on lbn-e-Maja, referred above, has named Ibn-e-Abi Shaiba (Arabic). Abdul Razzaq (Urdu) Ibn-e-Manzar, (Arabic). Ibn-Taimia (Arabic) in support of this view.
273. Moulana Abdul Ala Moududi, in his commentary known as Tafheem-ul-Quran (Arabic) has written the following Note (numbered 253) on page 176):- {{ Urdu Text miss }} These lines, if translated into english, may read as under: It appears from authentic Ahadith that if any person gets his divorced were married, as a conspiracy, with someone only to get her validated for himself by way of settlement in advance that he would divorce her after marriage, then such an act is invalid in totality. Such matrimony will not be matrimony. But it would entirely be a malefaction. And with such conspiratorial marriage or divorce, the woman shall not be valid at all for her previous husband. According to a tradition, having unanimity and narrated by Hazrat Ali, Ibn-e-Masud, Abu-Hurairah and Uqba-bin- Aamr (R.A) the Holy Prophet (peace be upon him) has imprecated the persons who does Halala or hires someone to do that in this way.
274. Similarly Mr. Justice Moulana Pir Muhammad Karam Shah Azhari, before his elevation as a justice, had written an article titled as Dawat-e-Fikro Nazar (Urdu) published by Noomani Kutab Khana Lahore. 1 would like to reproduce few lines from that article which are related to the issue of Halala and read as under: {{ Urdu Text miss }} Note: Under-lining is my on. The referred Ahadith have already been quoted above with their translations. These lines, if translated into English, may read as under: "With only few exceptions, certain persons, with innocency. Show them the door of Halala. At that time the Hadith of their bashful and indignant Prophet is forgotten by them (that) (Arabic) i.e., imprecation of Allah upon that who performs Halala and imprecation of Allah upon that (impudent) for whom Halala is done, In this regard, listen one more Hadith (It those religions doctor translate if themselves who permit Halala): JII jJU I**-*'*J--^* 1,1)1 J"* ,UI l y JJUJI * P t I {{ Arabic Text }} Had any unfortunate been so templed to accept the solution guided by these conceited religious scholars, then Islam would have screeched on the witty cruelness of its on gracious-blessers with a groan for help from the dweller resting under the Verdant Dome.
275. Note: It is almost impossible to transfer the real import of any passage of a language into another language. Therefore, in spite of all my efforts. I failed to radiate the rhetorical eloquence treasured in the underlined sentences into English. Thus I was left with no other alternative but to subsist on verbal translation with a hope that Mr. Justice Pir Muhammad Kassan Shah and his followers would excuse me for this failure.
276. I have no doubt in my mind that the curse of Halala can come to end if the people adopt the laws of divorce as taught by the Holy Prophet (peace by upon him).
277. 40(a) Although the legal and the Islamic position of Halala has been fully explained in the above lines yet the supporters of Halala are invited to come out with their authoritative grounds, if any, possessed by them to show: "Whether this artifice of validating the were ever took place during the period of the Holy Prophet (peace by upon him)?
278. "Whether any companion of the Holy Prophet (peace be upon him) ever issued the decree for Halala?
279. "Whether any tradition from any book can be referred which could show that someone had performed such shameless act?
280. If answer to all these questions is "NO", then issuance of decrees for Halala by these decreers is the most hated and sorrowful act which has defamed the religion of Islam everywhere in the world.
281. Similar is the position of their decrees on the issue of Khula because these religious decreers are unable to refer a single incident to show that Khula was ever denied to any were by the Qazi whenever the husband refused to divorce his were. I am afraid that if the decreers went on issuing such decrees, the people may start opening "Halala centres" where the goddess of humanity would lament with elegies on the corpse of chastity whenever any hired barbaric sexist will butcher the modesty of bashful beauts with blunt saws of shameless act of Halala on the1 altar constructed with the bricks of decrees manufactured in the Kiln of specific school of jurisprudence of these religious decreers. I am also afraid that if the religious decreers went on stressing that Talaq under compulsion is permitted, in spile of the universal Quranic Law of Al-Might Allah i.e. (Arabic) (no compulsion in religion), the rich and the influential ladies would use bribable and corrupt officials for their divorce instead of approaching the Courts to get separation from their husbands in respectable manners, as and when desired by them. For that purpose the rich wives would grease the palms of corrupt police officials for the said purpose. The poor husbands, them, would be called in the police station. They would be forced to pronounce divorce. In case of refusal, they would be subjected to face mental and physical torture till they agree to pronounce divorce as desired by their wives. Such divorce would be effective according to the religious decreers of Hanfi School of Jurisprudence (Ref. Daily Jang Karachi dated 8.12.1995). The religious decreer, who had issued the decree that Khula through Courts would be invalid (Urdu) belongs to the same Schools of Jurisprudence. It is known to everyone that Klnila through Courts is always free from torture. In the light of these realities, the-value of those decrees can be easily evaluated by taking into consideration the difference between Halal (Urdu) and Halala (Urdu). Halala is nothing but pre-arranged artifice of marriage and divorce which does not possess the characteristics of marriage or divorce in Islam. Such invalid artifice was invented to validate another invalid thing known as Talaq-ul-Bid dat but I fully believe, as a part of my faith, that joinder of two invalid acts can never make these acts valid.
(b) True concept of artifices can also be explained with the help of another example mentioned in certain books.
282. The muslims pay Zakat in respect of the properties possessed by them. The Zakat becomes due after the expiry of one year Zakat becomes due not to pay the Zakat, transfer or gift the whole property in the name of their wives before the expiry of one year so that they could say that they have nothing in their hands to pay Zakat. Similarly their wives transfer or gift the same properties in the name of their husbands before the expiry of one year, The result of such transfer is obvious.
283. The wives would say that they have nothing in their hands to pay Zakat, In this artifice, intention of the spouses is clear, Such artifice may be valid in the eyes of those decreers who believe in such artifices and treat them valid but, according to my point of view this is a fraud and joke with Islamic provisions of laws under therefore, all such artifices are not only invalid but ineffective.
284. Same is the position of Halala which is an invalid act so it cannot validate the act of marriage of a woman for the purpose of Rajoo (Urdu) to her previous husband if she had become invalid for that husband after the third divorce. From the radiations of decrees on the issue of Halala. Every Muslim can evaluate their other decrees, particularly on the issue of' Khula'.
(c) It may be necessary to point out that Halala was invented for the purpose of Rajoo. Therefore, the real concept of Rajoo must also be understood.
285. The word Rajoo (Urdu) in the cases of marriages gives the import of returning back by a husband to his were after divorce. The terminologies known as Talaq-e- Rajee (Urdu) and Talaq Ghair Rajee (Urdu) are generally used by the jurists, In case of Talaq-e-Rajee. The husband can return back to his were after divorce but in case of "Talaq Ghair Rajee", the husband cannot do so. It would be interesting to note that all these terminologies are only juristical terms otherwise every divorce, in my view, is Rajee (Urdu), because a husband can return back to his were in all types of divorces. However, it would be necessary to explain this point to avoid any misunderstanding. If any husband pronounces a divorce, he can reconcile within the period of Iddat (Urdu) and it would be called "Rajoo" (Urdu). If the period of Iddat has expired, he can remarry the same were.
286. This is also nothing but Rajoo (Urdu). But this type of "Rajoo" is permitted only twice.
287. If the husband has divorced his were for the third time after the second divorce, then Rajoo in the above from would not be possible, In that case if the divorced were has married with any other person \with her on free will and not with an intention of pre-arranged marriage and divorce and her second husband has also divorced her with his free will, then she can mary either with the first husband or with any other third person. Similarly if the third husband also divorces her, she can mary the first or the second husband or any other fourth person. It would also be a "Rajoo" towards the first or the second husband, In all such cases there is least intention of pre-arranged marriages or divorces. This is the valid form of divorce and Rajoo. This provision of law has been explained in verse 230, Surah 2 (Arabic) of the Holy Quran. But Halala is an artifice which is the most shameless act with intention to get the were separated after her marriage with a person so that she is treated valid for the previous husband. In case the hired husband refuses to divorce, then the interested husband uses forces to get that lady divorced. Such kind of marriage and divorce is totally in contravention of the sacred contract of marriage and its purposes, for which marriages are overadvertised. The marriages in Islam cannot be equated with the stories of Indian Films, in which sweet-hearts sacrifice their modesty for their lovers. Marriages in Islam have their on sanctity and -they must not be treated the marriages between actors and actresses of Hollywood, Hollywood vor Hollywood or marriages of beauts and professional harlots with voluptuous princes of several well-known countries who get themselves married with those ladies only for the countable day with intention to divorce them after these days, Can such marriage be treated marriages in accordance to the spirit of Islam? I leave this question to be answered by those decreers who have issued the decrees on the issue of Khula as quoted above in paragraph 15 above. If they say that, intention of such princes was adultery and not marriage, therefore, these paper-marriages cannot be treated marriages, then question arises why Talaq-ul-Bitt dat be treated irrevocable Talaq if intention of pronouncing Talaq was not divorcing the were forever?
41. A question arises why such artifices are invented by the artificers and followed by religious doctors?
288. In the light of above discussion I have no doubt in my mind that whenever an\ new thing was introduced by any school of Jurisprudence in Islam in respect of am well-settled issue and was introduced as the part and parcel of Islamic System, it always created problems.
289. For example, act of divorcing a were at a time in one meeting is treated to be an invalid act by several schools of Jurisprudence, except the Shavies, but in spite of ifs invalidity, it is not only treated to the effective but is also considered, to be "an irrevocable divorce or Talaq-e-Baen
(Urdu) or Talaq Ghair Rajee (Urdu) because the husband has no locus penitential in the case of such divorce as her views expressed b\ the four famous school or jurisprudence. This type of Talaq i.e. Talaq-e-Biddat is not' accepted to be an irrevocable divorce but only revocable talaq by Ahl-e-Hadith or the followers of Imam Ibn-e-Taimia, but, according to their point of view too, three divorces, in shape of Talaq-e-Ahsan (Urdu) or Talaq-e-Husn) (Urdu) result as Talaq- e-Baen
(Urdu) become effective after the third divorce and the separation become irrevocable. The problems arises when the spouses desire or decide to return back to each other after Talaq-e- Baen (Urdu), In such cases the artificers invented the artifice of Halala for those who were the slaves of their wishes and not the lovers of sacred laws. As Talaq-e-Bid dat is also considered Talaq-e-Baen by the four schools of Jurisprudence, therefore, the followers of these schools always decreed for Halala whenever any husband desired reconciliation with his were after lie committed an invalid act of divorcing his were thrice at a time; Hence it can be said with certainly that "artifices, in religions, are the product of innovations.
290. On account of such document two more questions arise for our consideration, which are basically inter-related. These questions can be formulated as under:
(i) What is the solution in Islam if the spouses, after Talaq-ul-Bid' dat. Are inclined to return back to each other if Halala is invalid in Islam?
(ii) Whether an in valid from of "pronouncement of divorce" can invalidate a valid marriage?
291. I am of the view that if an invalid thing is mixed with a valid thing, then the whole mixture may be treated invalid if they are so mixed together that their separation is impossible. For example, if urine is mixed with pure water, then whole mixture would become invalid for the purposes of drinking because separation of and of the two components from that mixture is impossibly. But in all other cases when the things are not in their physical forms then neither an invalid act (such as pronouncing Talaq thrice at a time) can invalidate the marriage of spouses (which is a valid union of husband and were) nor the union of two invalid acts (such as pronouncing three divorces at a time and then Halala) can give birth to a valid act. This document covers the answer to the second question as formulated above.
292. True answer to the first question would not be possible to find out unless the follow his important aspect is also kept in view: Enforcement of the Shariat Act. I99l was introduced in Pakistan on 5th June.
293. 1991 (PLD 1991 Central Statutes 372). Explanation to section 2 of this Act runs as under: "While interpreting and explaining the Shariah the recognised principles of interpretation and explanation f the Holy Qur'an and Sunnah shall be followed and the expositions and opinions of recognised jurists of Islam belonging to prevalent Islamic schools of jurisprudence may be taken into consideration."
294. In the light of above-mentioned explanation, if Talaq-u 1-Bid dat is invalid in Islam, then its effectiveness would also be questionable. If it becomes effective as an irrevocable divorce in spite of its being invalid, then solution for reconciliation, other than shameless Halala be told by the decreers. Who consider this invalid form of divorce to be effective as a Talaq-e-Bnen. If it becomes effective to the extent of only one revocable divorce, then there would be no need of Halala. Il is. Therefore, necessary to know the view of different sects about l alaq-ul-Bid dat before taking the issue of its effectiveness, particularly when certain jurists claim Ijmaa' on the said issue.
295. Moulana Abdul Ala Moudoodi also discussed this issue in the follow in a words: 1 J* /, J f * * j ' {{ Urdu Text }} (commentary on the words (Urdu) ill rallied-in-Quran. Note 25 I on page 174)
296. The above lines were earlier reproduced in para 17 with their translation, I herefore. I need not to reproduce the said translation in 'his para, except to point out that I have translated the word 'Talaq-e-Mugiialla/' (I rat) as final and irrevocable Another form word "Mughal laz" is "Ghaleez" with the same conventional sense. The Holy Quran has used the said word in verse 21 Surah 4 for "Nikah" (matrimony) by treating it as "Meesaqun Ghaleeza" (Urdu) means solemn covenant) which the word Mughaleeza (Urdu), which has the same meaning as of Ghaleeza (Urdu) has been used by Motflana Abul Ala Moudoodi in the above para for Talaq-e-Baen or irrevocable divorce.
297. With the due respect and regards for Muulatta Abdul Ala Moudoodi. It would have been most appreciable if he had expressed his on view too instead of limiting himself to the underlined words. His avoidance for not expressing his views on this important issue is. Therefore, not meaningless. As the name of Moulana Abul Ala Moudoodi can be exploited by certain concerns on this issue, therefore, this also becomes one of reasons to discuss this from of divorce in detail in the forthcoming paragraphs so that w hether the claim of Ijmaa fcy the learned jurists4s based on sound footing or not? I am of the view that unanimous view of the four Imams cannot be called Ijmaa. Moreover, the view of four Imams cannot be, accepted if the same appears to be contrary to the decisions of the Holy Prophet (peace be upon him). On the same proposition, if it is presumed that the view of the four Imams on the issue of Khula is the same, even then it shall not be accepted if it Js found contrary to the decisions of the Holy Prophet (peace by upon him).
42. At present only four views arg prevailing among the Muslim Jurists on the issue of Talaq-ul-Bid dat and they can be summarised as under-
(a) One view is advocated by the Shafis who get support from the case of overtime-al-Ujlani (Urdu). This case has been quoted in para 24(c) above, It was a case of and (Urdu) in which were of overtime (Urdu) had taken oath that the charges of adultery levelled by her husband were not true. After that oath, the Holy Prophet (peace by upon him) had to get their marriage dissolved but before the Holy Prophet (peace be upon him) had pronounced separation between them.
298. Overtime said: O. Messenger of Allah, of keep my were with me {{ Arabic Text miss }} (after her oath), it would mean that I have l ed. So he divorced her thrice. "ti >' j' {{ Arabic Text }} In Sahih-ul-Bokhari. This Hadith was mentioned by Imam Bokhari to deal with the issue of L.An but in Sunna Nissai, this lladith was mentioned in support of three divorces to be treated three when pronounced at a time in one meeting (Chapter JUA'
299. 1706). Hadith numbered as 3434 on page 371 in Kitab-ul-1 alaq in Arabic-Urdu Karachi.
300. Another case which is usually referred by the Shafis is the case of Fatima-bin- Qais which is reported in Sunnah Ibn-e-Maja (Urdu). This case is mentioned on page 108 in kitab-ul-Talaq in a Hadith numbered as 2024 (in Arabic Urdu Edition) published by Islami Academy Lahore. The said Hadith was narrated by Aamir Shaabi (Urdu) who stated that: I asked Fatima-bint-Qais, "Narrate about your divorce" she said". My husband was leaving for Yeman and he divorced me thrice. The Holy Prophet (peace by upon him) justified it: (Urdu) {{ Arabic Text miss }} Hence, according to the Shavies a divorce pronounced thrice at a time is neither un-islamic or invalid nor biaddat and in therefore permitted in Islam.
(b) The second view is of the, Hanafis, the Malik is and the Hambilis. Who have strongly opposed the view of Imam Shafie. According to his view, divorcing a' were thrice at a time is invalid and Bid dat (innovated) but it becomes effective when any person pronounce three divorces at a time.
301. The jurists of these Schools get strength from different Ahadith including the ope reported iff Chapter 1705 on page 371 and numbered as 3433 in Sunnan Nisal (Arabic-Urdu Edition) published by Dar-1 ul-Ashaat Karachi.
302. The said Hadith was narrated by Mehmud-bin-Labeed who stated that: 'The Holy Prophet (peace be upon him) was informed that a person had divorced his wifething al a time. The Holy Prophet (peace be upon him.) stood with anger. (Urdu) Then said. "Playing with the Book of Allah* has started (when still) I am among you"? On this a person stood up and said.
303. "O" Messenger of Allah, should I murder him"? {{ Arabic Text miss }} The jurists of these schools usually contend that the Holy Prophet (peace by upon him) was, no doubt, very angry when he came to know about such kind of divorce but he did not say that such divorce has not taken place. On the basis of reaction of the Holy Prophet (peace be upon him) it can be presumed that this type of divorce was invalid but effective.
(c) According to the third view', pronouncement of divorce once, teice and more than that would be treated one. The supporters of this view contend that a thing which is invalid cannot be believed to be effective. Imam. Dawood Zalfiri (Urdu) and Ahle-Hadith support this view, In support of this view, they refer the case of Rukana- bin-Abde-Yazid who divorced his were three times at a time. Hence he came to the Holy Prophet (peace be upon him) and asked about it. The conversation, which took place between the Holy Prophet (peace be upon him) and Rukana, is mentioned in all books of Ahadith but a part of that conversation appearing in Hadith numbered as 2051 on page I24 in Kitab-ul-Talaq (Arabic and Urdu Edition) of Sunnat! Ibn-e-Maja published by Islamic Academy Lahore is reproduced herein under.
304. The Holy Prophet (peace be upon him) asked, "What was your intention when you divorced?"
305. Rukana replied", (My intention was) one (divorce).
306. The Holy Prophet (peace be upon him) asked, "By Allah, (or By God!) had you intended nothing but one divort?
307. Rukaha said "By Allah! I had intended nothing but one divorce. The Holy Prophet (peace be upon him) said, "Then return back to her." {{ Arabic Text miss }} 43(a) In Mustadrak-ul-Hakam (Urdu) it is also mentioned bn page 199-200 (Arabic Edition) published from Riyadh (Saudi Arabia) that Rukana-bin-Abde-Yazid came to the Holy Prophet (peace be upon him) and said; I have divorced my were Sahmia (Talaq-ul-Batta) By Allah, my intention was one divorce. So the Holy Prophet returned him to her. He divorced her second time drink the period of Hazrat Umar (R.A.) and third time during the period of Hazrat Usman (R.A.) {{ Arabic Text miss }} (underlining is my on)
308. It has also been stated with reference to Hazrat Ibn-e-Abbas, on page 196 in the same book i.e. (Mustadrak-ul-Hakam, that pronouncing three divorces at a time in one meeting was treated one divorce during the periods of Holy Prophet (peace be upon him). Abu-Bakr and for about two years during the caliphate of Hazrat Umar. But. Hazrat Umar, on account of precipitousness shown by the people due to their personal gains promulgated an order to treat three divorces to be three and not one. The relevant words of Ibn-e-Abbas as quoted in the said book run as under: Pronouncing three divorces was treated one divorce during the period of the Holy Prophet (peace be upon him), and Abu-Bakr and for two years during the Khil^phare of Umar. Then Umar said.
309. "People have started showing precipitousness for their personal gains in which they had been given intermission (for consideration) Would that! We had imposed it on them "So he imposed that upon them. {{ Arabic Text miss }} This reality was also mentioned in several other books of Ahadith such as in the Muslim in a Hadith numbered as 1178 in Chapter I62 on page 468 Volume II (Arabic-Urdu Edition)-published by Quran Mahal Karachi and in Abu Dawood in a Hadith numbered as 432 in Chapter 134 mentioned on pages 155-156 in volume II (Arabic-Urdu Edition) published by Darul Ashaat Karachi. In Miskhat (Urdu), this case is mentioned in a Hadith numbered as 3142 on page 123 Volume II (Arabic- Urdu Edition) published by Muhammad Saeed & Sons, Quran Mahal Karachi with reference to Abu- Dawood. Tirmazi, Ibn-e-Maja and Darni. It has been stated in certain books that Abu-Jaffer Muhammad-bin.-Ali-bin-Hassan and his son Jaffer- bin-Muhammad also had the same view.
(b) Fourth view is of Mootzilla (Urdu) and few jurists of the Shias. According to this view, pronouncement of divorce in one meeting is not a divorce at all.
310. All these four views shave been mentioned in the collection of decrees (Urdu) of Imam-Ibn-Taimia on pages 8-9 composed by Abdul-Rehman's-bin-Muhammad-bin- Qasim-al-Najdi-al-Hambili in Volume 33 (It Edition) published in 1398 A.H. By Fahad-bin-Abdul Aziz (The present King of Saudi Arabia)
311. Imam Ibn-e-Taimia treated the third view to be in accordance to the Holy Quran and the Sunnah of the Holy Prophet (peace be upon him).
312. 44.(a) With due respect and regards for all those who are mentally attached with any of the four view I have no hesitation to concede that l could not embrace any of the four views which were accepted or followed by most of the learned jurists. I am of the view that merely utterance of few words would be nothing and meaningless unless intention is adhered with those words.
313. It may be averred that ^when any non-believer embraces Islam, he or she also utters merely few words and is then treated to be a muslim. I say that even in that case too intention is the main thing. I any person pretends to have embraced Islami but his/her intention is different then such an act is termed an hypocrisy and the said person is called hypocrite. These persons were stated in the Holy Bible as under:- And when you pray, do not be like the hypocrites, for they love to pray standing in synagogues and on the street corners to be seen by man "(Mathew 6:5)
314. And in the language of the Holy Quran; "The Hypocrites will be in the lowest depths of the Fire; no helper weight thou find for them (4 : 45)
315. It is also necessary to point out that even intention must be judged in the light of provisions of the Holy Quran. If some one has done anything with any specific intention, but the said act is found to be against the provisions of Islamic Laws, then mistake done by that person can be rectified as in the eases of "Zihar" w rich has been discussed in para 24(b) above.
(b) Notwithstanding to the effort being made by this Court, the religious decreers and their followers of Muqatedeen (Urdu) or the people who are named as Ghair Muqatedeen (Urdu) or call themselves Mila-e-Hadith etc. May stick to then- on views because my view in this judgment wt tins issue is an opinion which is not binding upon them. Moreover an opinion expressed by any person can never be authoritative but only persuasive for other religious sects. Therefore it Mr. Be accepted by the learned jurists or be rejected by any sect. However an opinion of an\ superior Court be not ignored by any subordinate Court.
316. This golden principle of Islam may not be refuted by anyone that an act of a person has to be judged on the basis of intention possessed by that person at the time of doing that act. In this regard support can be sought from one of the Ahadith of the Holy Prophet (peace by upon him) which is mentioned on page 130 in chapter 166 in Kitab-ul-Talaq of Sehih-ul-Bokhari (Arabic Urdu Edition). The relevant words of the Hadith read as under: J* I j JUUl {{ Arabic Text }} Acts depend upon intentions. Everyone gives what he intends.
317. Iman Bokhari has referred this saying of the Holy Prophet (peace by upon him) which discussing the issue of divorce by persons who are lunatic, intoxicated condition and were forced to divorce under torture. This principle is further supported by the case of Rukana-Abde-Yazid which has been mentioned in sub-Para (c) above. In that case Rukana had divorced his were thrice but his intention behind it was only one divorce. Therefore, when Rukana sought decision from the Holy Prophet (peace be upon him) about the divorce, pronounced.
318. By him, the Holy Prophet (peace be upon him) asked him what his. Intention was. When Rukana stated that his intention was to give one divorce, the Holy Prophet (peace be upon him ) accepted that statement and treated the said divorce to be only one. Hence it can be deduced from the case of Rukana that effectiveness of "pronouncement of divorce thrice at a time" depends upon intention of husband. If facts, circumstances or statement on Oath of husband in a case reveals that intention of the husband was irrevocable divorce then the same could be treated irrevocable and if intention of the husband was only one divorce, then the same has to be treated one. If facts, circumstances and intention of the husband are fond silent, then pronouncing three divorces at a time in one meeting shall be treated only one divorce as discussed in the*beginning of this para.
(c) It may not be advantageous to leave all those Ahadith of the Holy Prophet (peace be upon him) untouched which are usually referred by the learned Jurists and also referred in .The beginning of this para. The case of overtime-al-Ujlani, usually referred by the Shafis has been a case of "l .An" where separation was inevitable. The Holy Prophet (peace be upon him) had to announce the decision of separation after the oath of the spouses each other even if the husband had not pronounced divorces. But contrary to the general principle which had to be followed for their separation by the Holy Prophet (peace be upon him). Overtime divorced his were their at a time. It is notable that separation as a result of "Lian" is always called Fash-e-Nikah but the case of overtime become a case of divorce.
319. Similarly in the case of Fatima-bint-Qais the husband had divorced her thrice when he was leaving for Yemen (according to another version he had set divorce from abroad). It would not have been treated appreciable if he had kept her were waiting for an indefinite period for his return because the Religion of Islam does not permit any husband to keep the wives deprived from their sexual rights as discussed in para 24(a) above with reference to Ela. Similarly no Islamic provision of law can force any husband to come back again and again from abroad of for purpose of divorcing his were for the second time or the third time to divorce her finally. The circumstances of that case, thus justified the act of divorcing a were thrice at a time. It is notable that the case of Fatima-bint-Qais is also mentioned in a Chapter regarding Iddat in Miskhat in a tradition numbered as 3180 on pages 136 to 137 (Arabic-Urdu Edition) published by Muhammad Saeed & Sons Quran Mughal Karachi. The name of her husband was mentioned as Abi-Umr-Btn- Hafs. After her divorce. Maawiya-bin-Abi- Sufyan and Abu-Jehm showed their desire to merryher but she married with Osma- bin-Zaid when it was so suggested by the Holy Prophet (peace be upon him) It is thus evident that if the husband of Fatima-bint-Qais had not divorced her then she would have remained unmarried of waiting for her husband.
320. In absence of any such circumstances if anyone divorce his were thrice at a time, the reaction of the Holy Prophet (peact be upon him) against such person, can be realized from the hadith narrated by Mehmood-bin-Labeed wherein it was stated that the Holy Prophet (peace be upon him) stood up with anger (Urdu) and treated it "playing with the Book of Allah". The severity of the reaction of the Holy Prophet (peace be upon him) can also be felt from this fact that one person stood up and asked the Holy Prophet (peace be upon him ) whether he should murder that person?
(d) In the light of above discussion 1 am of the view that in each and every case, effectiveness of divorce has to be judged on the basis on circumstances, facts and intention of the husband provided the same are endorsed by the provisions of the Holy Quran and Sunnah if the Holy Prophet (peace be upon him). For example, if any husband has been put in the clutches of tortures and is forced to pronounces divorce thrice then such pronouncement , according to Hanafi School of Jurisprudence shall be treated effective with the consequences that irrevocable divorce would takes place. If can be said by the decreers of this school that the husband under torture pronounces divorce with intention to divorce, therefore, divorce has to be treated effective.
321. With due regards for the decreers, such contention is not convincing at all because such an intention was obtained under Ikrah, means compulsion by use of illegal torture which has never been endorsed by the Holy Prophet (peace be upon him). Moreover, the universal Quranic Principle that "La-Ikraha Fiddeen " means "no compulsion in .Religion" does not support such an intention. Therefore, such divorce can never be effective.
322. This is another example of the decrees of those decreers who condemn the decrees of the Courts on the issue of Khula. However, the Courts need not to condemn the decrees on the point of divorce under torture because it is the part and parcel of their school of Jurisprudence. It depends upon the follower of every school to follow all or any view of his/her school Same is the position of decrees on the issue of Khula. It depends upon the common people to follow these decrees of the religious decrees or reject them. But these decrees are not binding upon the Courts. On account of these reasons I have no hesitation in my mind to say that the views expressed by the religious scholars, Muqallideen, Gair Muqaliedeen, Ahle-Hadith, by the followers of Moulana Maudoodi or by another school may or may be followed by their supporters but no sect should remain in this misunderstanding. If there is any that the Courts are also bound to follow any of them blindly even, if they do not reflect the real spirit of Islam and only radiate the views of their respective sects.
323. 45(a) According to the famous proverb, a drowning man catches a straw the followers of Shafies School of Jurisprudence refer the decision of Hazrat Umar (R.A.) as mentioned in para 43(a) above. It is claimed by the Shafies that divorcing a were thrice at a time is valid as well as effective because Hazrat Umar imposed it and no one opposed it. On the other had the followers of Hanafi School of Jurisprudence, who consider such divorce invalid, refer the same decision of Hazrat Umar in support of "effectiveness of divorce" and say is that if it had not been invalid.
324. Hazrat Umar would not have flogged the and if it had not been effective, it would not have been taken so seriously by Hazrat Umar. It has been stated by these jurists that decision of Hazrat under (R.A) regarding "effectiveness of divorce" pronounced thrice in a meeting was not opposed by anyone. Hence it can be treated Ijma which is binding upon the Muslims. I am sure that no one would deny this reality that there arc several other decisions of Hazrat Umar (R.A) which were never opposed by anyone but no one treated them Ijma. For example no one can produce a single piece of evidence to show that flogging by Hazrat Umar (R.A), quoted from Tafheem-ul- Quran by Moulana Abu-ala-Maududi in para 17 above, was never treated Ijma.
325. Similarly the view of Hazrat Umar regarding "I Iajj-e-Tamalta as discussed in para 9 above, was not opposed but only differed by his son Abdullah-bin-Umer. But no religious decreer demands that the decisions of Hazrat Umar (R.A) Regarding flogging and Hajj-e-Tamatta be imposed upon the whole Muslim community.
326. It is also important to note that Ijma can never be against the Holy Quran or the Sunnah of the holy Prophet (peace be upon him). Admittedly the decision of Hazrat Umar was not the decision of a Prophet but was of his on decision as is clear form the words mean "Would that! We had imposed on an them " and mean so he imposed that upon them.
327. Hence it was not applicable during the period of the Holy Prophet (peace be upon him). Similarly no such order was passed by the first Caliph Hazrat Abu-Bakr (R.A) during his period. Therefore there must be some background of imposing such provision of law by Hazrat Umar after two years of his caliphate, In this connection several questions arise for our consideration. For example:
(i) Whether imposing such provision of law by Hazrat Umar was in the nature of Tazir for a specific period or a permanent law ?
(ii) what was the background of imposing such law?
328. If there had been Ijma over this issue for all the times in future, then no one would- have opposed it. But in any age in the past it could not become so controversial as it is today. Hence it can be said with certainty that imposition of such law was for a specific period due to certain necessities or urgencies. Therefore, if it is presumed that it was an Ijma then it was only for a specific period and not a permanent law for' all times.
(b) Regarding the background for imposing such provision of law, several reasons were dug out by researchers in the present age but nothing can be said with certainty. However most of them believe that after the victory of several countries during the period of Hazrat Umar, the Arabs were found interested to merry the ladies of these countries. As these women were not ready to mary them in presence of their previous Arah-wives, hence the people had started divorcing their Arab wives thrice at a time without waiting for the expiry of period of iddat which, inter alia, was a period for their consideration to reconcile or otherwise. Because their intention was clear from their conduct that they had decided to divorce their wives once for all, therefore, on the basis of this background, Hazrat Umar imposed the said prevision of law so that the divorced wives should not remain rotting in hope of their husband's return. As this type of divorce was not in accordance to Sunnah of Holy Prophet (peace be upon him), hence it was termed Talaq-e-Bidat means "invented or innovated divorce".
(c) Even if it is presurmised that the reasons r background for imposing such prevision of law, as stated above, are baseless even them such orders are not binding for all times. I would like to explain this point with the help of examples. It is known to all Pakistanis that slaughtering certain animals in Pakistan is prohibited on Monday and Tuesday on account of certain necessities.
329. Although religion of Islam does not put any such restriction yet neither any religious decreers has opposed this provision of law nor anyone treated it Ijma inspire of this reality that no one opposed it. If necessity requires that number of such days be increased the Government would be justified to do so, This point can al$o be explained with the help of Article 89 of the Constitution of Islamic Republic of Pakistan. According to this Article, the President of Pakistan may make and promulgate an Ordinance when the existing circumstances require and render it necessary to take immediate action to meet any urgency provided the National Assembly is not in Session. Such Ordinance is promulgated only for four months and can be Withdrawn at any time by the President. But an Ordinance neither replaces any part of the Constitution nor is, treated an permanent law for all times although it is treated as an effective law.
330. 46(a) I think that position of the provision of law which had been introduced by Hazrat Umar was like an Ordinance to meet the urgency or necessity of time. Hence it cannot replace the permanent laws of the Holy Quaran and the Sunnah of the loly Prophet (peace be upon him). Even otherwise the views expressed by the religious decrees are based on such books which were written several centuries. After the revelation of verse which speaks that Today I have perfected your religion (5:3) {{ Arabic Text miss }} Moreover these books are not treated to be the books of Ahadith and admittedly they represent the views of specific school of jurisprudence. This reality can be supported by referring few' books herein below with their period of composition.
(i) Qadoori (500 A.H.) , . (Hajjs)
(ii) Hidaya (600 A.H.) (s'-f)
(lii) Qazi Khan (600 A.H.) (^M>)
(iv) Jame-Ramooz (800 A.H.) (V^'S) ^ (v) Fath-ul-Qadeer (900 A.H.) ^
(vi) Tanvir-ul-Absar (I000 A.H.)
(vii) Dure-Mukhtar (l 100 A.H.) ( 'tk,u. '?< ) ($)*)
(viii) Fatwa Alamgiri (1200 A.H.) {{ Arabic Text}} These are only few books, otherwise position of other books is also the same and they cannot replace the books of Ahadith. In the light of all these facts as discussed in deferent paras, lean only pray that may Allah have mercy upon those who treat valid separation of a were by way of Khula through Courts invalid and remarriage Of any such lady with another person after separation to be adultery on the basis of those books which neither possess the status of the Holy Quran nor of the Book of Ahadith of the Holy Prophet (peace be upon him) but the same decreers issue decrees of Halala which has been imprected. By Allah as well as by his Prophet (peace be upon him )in the books f Ahadith.
(b) In the last. I would like to discuss this issue w with reference to one phrase of the Holy Quran read as 'Meesaqun-ghaleeza. This phrase is composed of two words i.e. Meesaq and Ghaleez. The arabic word "Meesaq is also used in urdu in the same sense i.e. a promise, an agreement, an alliance, a covenant or a contract. l-'rom these meanings, the true concept of "Meesaq-e-Milli" means national covenant, can be easily understood. The word ghaleez. In urdu, is generally used to express the concept of "dirty" but in Arabic it gives the import of being "thick", intense. Strong or serious etc. In the light of these meanings the phrase "Meesaqun- ghaleeza can be meant a "strong covenant which cannot be brought to end easily". This phrase was used in the Holy Quran at three places but only in the sense oPcovenant as is clear from the following.
(i) And remember We took from the Prophets their Covenants as (We did) from the, from Noah.
331. Abraham, Moses and Jesas the son of Marry: We took from them a solemn covenant. {{ Arabic Text miss }} That solemn covenant was that the Prophets had to carry the Message of Allah without fear at any cost and in all circumstance was to the people and had to teach them to follow the' right path is told by Allah through His Prophets (peace be upon him).
332. The same phrase appears in another verse as under:
(ii) And we raised over them (the towering height) of Mount (Sinai) and We said to them, "Enter the gate with Humility" and we commanded them," Transgress not in the matter of Sabbath and we took from them a solemn covenant.
333. ( *1-JUjJ- ) {{ Arabic Text }} ARABIC According to different commentaries on the Holy Quran, this Verse contains a recapitulation of three incidents of Jewish refractoriness i.e(i) the covenant under the towering height of Sinai referred in verse 63 of surah 2;
(ii) their disobedience when they were commanded to enter a town with humility as referred in verse 58 of surah 2 and (i.e) their transgression of the 'Sabbath; as referred in verse,65 of surah 2 of the Holy Quran.
334. In this connection Exodus XIX 5,8,16,18 and XXXI 12-16 can also be referred for those who are intreated in research. Thus in both these above quoted verses, the phrase Maeesaqun ghaleesa was used for the covenants taken by Allah from his Prophets and the believers of the time. But Al- Mighty Allah has used the same phrase for the "matrimonial bond" between the spouses as referred I para 36 above. I am , therefor of the view that there is some mystic concept fully embodied in this phrases which reflects a spiritual relationship between the spouses. Had there been no such relationship, the Holy Quran would not have used the would 'Limits ordained by Allah" in verse 229 surah 2 for the law of divorce and the Holy Prophet (peace be upon him) would not have stated that: "Woman asking for khula without any reasonable grounds will be deprived of the fragrance of paradise.
335. (Misheat with reference to Ahmed Tirmazi, Abu-Dawood , Ibn-e-Maja and Darmi) and the most detestable of lawful things in Allah's view is divorce.
336. J ,4- j A* -J! Jt j,\ j*) ^i 3 *~,'l*1 *' **"*J {{ Arabic Text }} (Mishakat with reference to Abu-Dawood). (These Ahadith are on page 131 anc numbered as 3138,3139 Volume II, Arabic-Urdu Edition published by Deena Khutab- Khan Lahore). Therefore this covenant i.e marriage contract, can neither be broken by any of the spouses arbitrarily nor can be dependent upon the consent of the husband. On the bases of this proposition I have no hesitation to hold that neither Talaqul-Biddat has nay Islamic sanctity nor the decrees of Khula require the consent of husbands to dissolve marriage between the spouses.
47. In the light of this whole discussion, as done in different paragraphs I have least doubt in my mind to hold that:
(i) Matrimony in Islam is such a sacred covenant that no separation between the spouses on any ground including khula can take place unless the conditions described in the Holy Quran are fulfilled for the said purpose.(para 23)
(ii) The Courts, in every country including Pakistan possess the status of "Oil- Amir. Therefore their judgments have t be followed by every law- abiding citizen unless they are shattered by the superior judiciary, (paras 12 to 15)
337. (i.e) No one is authority in Islam to followed blindly except Allah and his Prophet (peace be upon him ). Hence the decrees of religious doctors on the point of Khula are not authoritative for any citizen of Pakistan as they are only persuasive in their nature.(paras 9-11)
(iv) the decrees of the religious doctors on the issue of Khula as published in the newspapers have the same status as their decrees on the issues of "Talaq-ul-Biddat" and "Talaq under compulsion'.
338. As their is difference of opinion among the jurists on these issues, therefore claim of Ijma on these issues is baseless.
(v) The spouses have equal status in Islam and their marriages involve several scared purposes. If those purposes are not obtained , then they can seek separation from each other but in accordance to procedure described in the Holy Procedure (paras 21-23)
(vi) divorce, in conventional, sense is the right of husband but he cannot use it . Arbitrarily.
339. Similarly dissolving marriage is the right of Qazi which does not need the consent of husband (para 46)
(vii) the were has a right not return while Mehr (dower) to her husband for the purpose of getting Khula unless it is so ordered by the Court or she herself agrees to return the whole dower or more than dower (paras 3 I- 35)
(viii) Islam is a perfect code of life and there is no scope of artifices in it such as Hilala. As innovations in Islam are the Products of artifices, hence they have no legal sanity (paras 39-40)
340. FEW WORDS FOR THE FAMILY COURTS 48(a) It has been mostly observed that proceedings under sections 10(3) and 12(1) of the Family Court Act 1964 are carried on by the Family Courts as formality which can neither be considered proper nor appreciable. Both these sections mention an important duty to be performed by the Family Courts regarding compromise or reconciliation between the spouses, it is notable that word "or" has been used between the words compromise and reconciliation in these sections.
341. Therefore intention and wisdom of the legislature demands the Courts to construe these words independently. According to my point of view, the word "reconciliation" used in these sections stands for reunion between the spouses while the word "compromise" imports the concepts of settlement on certain terms and conditions which may include, into ralia, separation between the spouses custody of children, maintenance and withdrawal of suit/suits by consent.
342. By keeping this difference in view, the family Courts are required to attempt under Section 10(30) of the Family Court Act to effect a compromise or reconciliation between the parties" at pre-trail stage so that the dispute could be finalized before starting the evidence, if that possible. The word attempt' used in the section shatters the practice of formality."
343. In case the Court fails to bring the dispute to an end at the pre-trail stage, then after closure of evidence of both sides, the family Court shall make another effort to effect a compromise or c between the parties under section 12(1) of the Family Court Act. 1964. The words "shall make another effort" reflect fully that post-trail' is not a formality.
(b) In the light of above discussion it shall be advantageous if I exercise supervisory powers under Article 203 of the constitution of Islamic Republic of Pakistan, 1973 to direct the Family Courts to exercise there jurisdiction in accordance to the real spirit of statutory provisions of the family Court Act, 1964. However, 1 consider it necessary to point out that powers of the High Court under Article 203 of the constitution are very limited and cannot be extended to the extent of interference in the working of the subordinate Courts. Notwithstanding to this reality, I think that it would not amount to interference I attention of the Family Court is drawn to these realities that the Muslim Personal Laws such as "Dissolution of Muslim Marriages Act", Law of Inheritance, Guardian and Wards Act etc., are very desitive in their nature besides this fact that the religious decreers of different sects always remain in search of an opportunity to assail the Courts by giving an impression that decisions of the Courts are not in accordance to Islam. Therefore, it. Shall be necessary for all the Family Court to follow statutory provisions of family laws in their conventional sense in such manners that neither, the spirit of Islam be stabbed nor the statutory provisions of laws be embarrassed at the cost s; of each other on the strength of their literal or verbal constitution. For example , if the family "Courts direct the spouses that each of them must bring one relative (or friend it no relative exists) to serve as arbiters for them at the time of pre-trial, them the said step would be certainly within the ambit of "attempt" or "efforts made by the Court' to effect compromise or reconciliation. Such an act would not only be in accordance to at the Quran provisions of law as ordered in verses 35 and 128 of Surah 4 and as discussed in para 23 above but also in accordance to real spirit of Section 10(3) of the Family Court Act, 1964. This is only a suggestion or an example because the Family Courts can adopt any other path which may be better than the path suggested by this Court. Similarly it would be within the discretion of the trail Court to dismiss the suit for non-prosecution if the were avoid to comply with the detections of the Court or can pass an ex-parte order against the husband in case the husband avoids to appear in the pre-trial. The Family Courts are not supposed to hesitate in passing such orders because in absence of any of the spouses at pre-trail stage, compliance of section 10(3) of the Family Court Act containing the word "shall" would not be possible.. Similarly proceedings under section 10(4) of the Family Courts Act 1964 would not be proper if section 10(3) had not been complied with in its true sense.
(c) Same is the position of section 12(1) of the Family Court Act, 1964. According to which the Family Court shall make another effort, after closure of the evidence to effect a compromise or reconciliation between the spouses. This provision of law is usually acted up only the coursing routine manners as formality. It would be proper that the Court should call the spouses and ak them to compromise or reconcile. In case the Court feels that compromise or reconciliations is not possible, then the 4. Wife be asked whether she is ready to return the mehr. If the were agrees to return the Mehr, then the Court must ask the husband to pronounce only one divorce. If the husband divorces, then Khula would be termed as one Talaq. If the husband refuses to divorce, then the Court would be left with no other alternative but to dissolve the marriage and such separation would be failed Faskh-e-Nikah it would be proper, rather necessary, that the Court must mention in the judgment that the separation between the spouses took place as a result of divorce or Faskh-e-Nikah as. The case may be.
344. If no such efforts are made by the Courts as required under section 10(3) or 12(1) of the Family Courts Act, then it can be presumed that the Courts have either not understood the real sense of the words "shall make another effort to effect a compromise or reconciliation or have treated these sections to be only a procedural formality instead of treating them to be the call of their substantial duty.
345. Similarly the Courts can ask the spouses to negotiate on any issue involved in the dispute to get their dispute narrowed as for as possible. These are only guide-lines to explain section 10(3) and 12(1) of the Family Court Act. Notwithstanding in to these guide-lines, the subordinate Courts are at liberty t adopt these steps or any other better step to meet the actual purpose embodied in these sections.
(d) I am sure that these steps would also meet all objections which are raised by the religious decreers who stress that divorce is the right of husband and, therefore, the Courts have no right to effect separation between the spouses unless the husband agrees to divorce his were. Hence the misunderstanding lies in the use of word "divorce:" and Faskh-e-nikah. If the Courts ask the husbands whether they are ready to divorce them or not, then it would be in accordance to the Islamic provisions of la as will as sufficients to meet the objections of the religious decreers.
346. Similarly if f the Courts specifically mention that marriage between the spouses is being dissolved and the same be treated as Faskh-e-Nikah, and not Talaq then it may bring the confusion created by the decreers to an end.
49. On the basis of this detailed judgment, I have no hesitation in my mind to hold that views of religious decreers on the issue of Khula are no more stronger that their decrees on the issues of Halala, divorce under compulsion and Talaq-e-bid'dat. Etc. The decisions of our superior Courts are based on well considered reasoning and thinking and it can be said with certainty that the religious decreers have nothing in their hands to shatter the judgments of the superior Courts 0n the issue of Khula or any other issue decided by these Courts.
347. This judgment shall also show that the Courts, in Pakistan are not influenced by modern westernised influenced society as alleged and propagated by these decreers in the newspapers.
348. However, we concede that the Judges of our superior Courts do not consider the religion of Islam to be the fief of any specific school of Jurisprudence: the conclusion of this discussion is that the ladies, who were granted Khula by the subordinate Courts were entitled for the same because there were no possibilities of their reconciliation \with their husbands. They were not. The prisoners of their husbands and, therefore, their separation on the basis of Khula was not subject to the consent of their husbands, similarly if anyone has got herself remarried after the grant of Khula by the Court, then she has not committed any fault and that act of marriage cannot be treated "zina"
349. (adultress ) as stated b self conceited decreers. It is necessary to point out that "Khula" granted by the Courts does not put any restriction on the spouses. They can remarry if they so desire.
350. 50(a) Before parting with this judgment consider it to be an act of ungratefulness, if I do not place on record my thanks due to Mr. Khalid M Ishaque, he senior advocate of the bar, who had been good enough to provide and arrange all hose books which were not available in our on library: Certainly l would not have teen able to reroduce the Arabic text of several references in this judgment. If these looks had not been made available.
(b) And in the last it is necessary to confess that it shall be an act of proudness if l do not embrace the errors, grammatical, literal, conventional, judicial, jurisprudential or even related to spellings, which were left in this judgment due to oversight or on account of lack of lore and mastery over the language of our old-masters. These errors are the proofs of this real it> that I am not an angel but only a human-being, not free from mistakes and errors which always become he beacons of memories.
351. APPENDIX 1 .Following verse of the Holy Quran is the only one which is referred by the religious deveins in support of Halala: "so if husband divorces his were, he cannot after that, remarry her until after she has married another husband and he has divorced her..........." {{ Arabic Text miss }} I have discussed my view with reference to this verse in the foregoing paragraphs particularly in para 40(b)(c). This verse does not contain the word "halala" but it was stated by certain commentators in their commentaries that it is called "halala". With due respect for all such commentators I am unable to accept that the Quranic Law as mentioned in this verse be termed "Halala" particularly when Ahadith of the Holy Prophet (peace be upon him) make it clear that Allah and his prophet (peace be upon him) has condemned it. It cannot be believed that an act is condemned by Allah through His Prophet (peace be upon him) but the same act is permitted by Allah in the holy Quran by making it Quranic law ! Hence use of term "Halala", which term has not been used anywhere in the holy Quran, can never be accepted a thing permitted by Islam particularly to validate an act can demand by holy Prophet (peace be upon him).
2. It is important to point out that in this verse the word has novel point pronounced as zabar on its letter which leaves no doubt that divroced ladled is^'subjective J' in the verse. Therefore the meaning of this verse is that 'she has married ' which radiate^ her on will to mary and not to be married under force by others. But in our society a woman does not mary herself in all such cases but she is forced to mary under pressure and is made an "object" or niajhool in Arabic instead of "subject'. If it had been permitted by Islam then the verse would have contained the words i.e., with vowel point. Pronounced as "pesh". In that case, the meaning of the verse would be "She is got to be married " this difference between (Tankeha) and (tunkeha) can be very helpful to understand the real interpretation of the above verse.
3. To remore the difference of opinion among the religion deveins about the use of this word Halala. We have no other way but to follow the principle as radiated by verse 59 of Surrah 4 and as discussed in one of the forgoing paras numbered as 12..e. Solve disputes by seeking guidance from the Holy Quran and the Sunnah of the Holy Prophet (peace be upon him ). In this connection verse 104 of Suraah 2. Guides us as under: Oye men of faith say not "Raina" and say "unzurna" {{ Arabic Text miss }} The Arabic words "raina and Unzurna have the same meanings i.e please look at us/attend to us.
352. But the question arises why the use of word "Raina" was prohibited and "Unzurna" was allowed when they have same meanings / There is no difference of opinion airing the commentators that little twisted use of word "Raina" gives insulting sense while the word "Raina" does give the same sense even if it is twisted and spoken I any manner whatsoever. From the verse it is evident that Islam does not permit the case of words in such manner which may give two contrary concepts to create confusion. On the same proposition when Halala has been condemned by the Holy Prophet (peace be upon him) heily,;'confusion must not be created by saying that it is permitted by Islam.
4. So far as Ahadith are concerned e have referred few Ahadith I para 39 to above, of religious deveins have any reference of any Hadith, contrary to those Ahadith quoted in this judgment then they must not hesitate to bring those Ahadith into light and if they have one then they must be afraid of Allah and his prophet (peace be upon him) at the time of claiming that Halala is proved from the Ahadith of holy Prophet (peace be upon him). What face will they show to Allah and his Prophet (peace be upon him) on the Last fuly of Judgment if they have nothing in their hands but claim that Ahadith permit it ?
353. Next comes the period of the companions of the Holy prophet (pee|ce be upon him). Their views are evidence from the following references. {{ Arabic Text miss }} The underlined lines, if translated into English may be read as under: "A man came to (Hazrat) Ibn-e-Umar and asked him about a person who has divorced his were three times but his brother, without consulting within him. Marries with her so that she should become valid for the first husband. Hazrat Ibn-e-Umar said "No. Matrimony is that which is with intention (for marriage) we counted it adultery during the period of Huh Prophet (peace be upon him).- Mustadarak volume 2, kitabuf-Talaq. Page 199 published from Riyuadh (Saijdi Arabia).
354. Kitabul-Sunnan by imam Saeed-bin-Mansoor.) A I-Kh u rasa ni (unorall y known as Sunnah Saeed-bin-Mansoor) contains the following two traditions. On ^ the same subject from two different sources: {{ Arabic Text miss }} The underlined lines, if translated into English may read as follows;- Umar said "Shall stone to death is I found a person who commits Halala and a person for whom Halala was done traditions numbered as 1192 and 1191 on page .75 in part II published by Al- Karussala fall. 13 Muhammad Ali Building BhindiBa/ar Bombas (India).
355. In the end I also appreciate Mr. Muhammad Sayad A Mill Private Secretary to Judge who took the greatest pain in typing this judgment.