Nazir Husain alias Nazar Husain having died, Mst. Anwar Bibi and Salma-un-Nisa plaintiffs claimed to be two of his heirs, the former being the widow and the latter the daughter of the deceased. The entire estate of the deceased having been mutated in the names of Mst. Sardar Bibi, Nathu Shah, A.I Husain and Feroze Shah, defendants, by Mutation No. 1172 on 22nd July 1958, the plaintiffs filed a suit in the civil Court at Sialkot on the 2nd of June 1959 for possession of their share of the estate of the deceased. This suit was contested by the defendants and the learned Civil Judge framed the following issues:-
(2) Whether Mst. Salma-un-Nisa, plaintiff No. 2, is the daughter of Nazir Husain deceased?
(3) Whether Nazir Husain was a Shia and as such was governed by Shia Law of Inheritance?
(4) If Issues Nos. 1 and 2 are proved in the affirmative, what are the shares of the plaintiffs in the inheritance of Nazir Husain deceased?
(5) If Issue No. 3 is proved in the affirmative, what are the shares of the plaintiffs in that case?
(6) Relief.
The learned Civil Judge by his judgment and decree dated 18th July 1961 found all the issues in favour of the plaintiffs and decreed the suit with costs.
2. During the pendency of the suit Sardar Bibi, A.I Husain and Nathu Shah defendants died and their legal representatives were brought on the record.
3. Feroze Shah defendant along with the legal represen--tatives of Nathu Shah and A.I Husain deceased filed Appeal No. 241, and Manzur Husain, 4 legal representative of Mst. Sardar Bibi defendant No. 1, assailed the judgment and decree of the learned Civil Judge by Appeal No. 242.
4. The learned District Judge by his judgment and decree dated 18th January 1962 upheld the judgment of the lower Court on Issues Nos. 1 and 2. He did not agree on Issue No. 3, decided the issue against the plaintiffs and held that the deceased Nazir Husain was a Sunni and not a Shia. He altered the decree on issues Nos.4 and 5 by calculating the shares of the plaintiffs under the Sunni law of inheritance. The appeal was, therefore, partially accepted and a decree for joint possession for half share in the land in favour of Mst. Salma-un-Nisa and one-eight share in favour of Mst.
Anwar Bibi was passed.
Mst. Nawab Bibi, etc. Have filed this second appeal against
5. The case of the defendants was that the deceased had divorced Mst. Anwar Bibi and that Salma-un-Nisa having been born after that divorce was not the progeny of the deceased.
Neither of the two were therefore, entitled to the share in the inheritance of the deceased. On the other hand, the case of the plaintiffs was that she was the legally wedded wife of Nazir Husain deceased; two months after the birth of Salma-un-Nisa she visited the house of her brother in Sheikhupura. While she was staying with him, her brother filed a suit for the dissolution of marriage but Nazir Husain never appeared to oppose it. When Anwar Bibi came to know of the fact that the suit had been decreed she went to her parents' house where Nazir Husain also arrived and a fresh marriage was celebrated between the two whereafter she left for her conjugal home and continued to remain there.
6. The point argued before me by learned counsel for the appellants is that a decree for dissolution of marriage having once been passed, the plaintiff could not enter into a second marriage with Nazir Husain deceased without having married a third person and having been divorced by him. It is contended that since it was not so done, the so-called second marriage ceremony between Nazir Husain deceased and Mst. Anwar Bibi was a sham transaction and had no legal sanctity attached to it, where--fore, Mst. Salma-un-Nisa who, it is alleged, was born a long time after the dissolution of marriage, was not the daughter of Nazir Husain deceased.
7. Since the learned lower appellate Court has held that the deceased was a Sunni Muslim and the same is a question of fact, this judgment shall proceed on this assumption.
8. "The dictionary meaning of Khula is to take out one thing from another . . . Since in a case of Khula` a woman comes out of the marital relationship with a husband, therefore, in Shariat the concept of Khula` is that a husband having received consideration from his wife gives up his right to the subject of the Nikah . . . In the Indo-Pak. Subcontinent Khula` has acquired a special meaning.
In these parts it connotes the getting riddance of a wife from her husband after relinquishing her right to the divorce." (Majmua-i-Qwaneen-i-Islam, Vol. II, Tanzilur Rahman, Ch. 14, pp. 570 and 571).
9. The sanction for this form of a dissolution of marriage is contained in Part II, Ch. II of the Holy Qur'an- " . . . And it is not lawful for you to take any part of what you have given them unless both fear that they cannot keep within the limits of Allah; then if you far that they cannot keep within the limits of Allah, there is no blame on them for what she gives up to become free thereby. These are the limits of Allah, so do not exceed theca, and whoever exceeds the limits of Allah, these it is that are the unjust."
The provision for talaq or divorce is made in the following words :- "229. Divorce may be (pronounced) twice; then keep (them) in good fellowship or let (them) go with kindness; . . . . 230. So if he divorces her she shall not be lawful to him after--wards until she marries another husband; then if he divorces her there is no blame on them if they return i.e. Each other (by marriage), if they think that they can keep within the limits of Allah; and these are the limits of Allah which He makes clear for a people who know." (The translation is by Maulvi Muhammad A.I).
The marrying of another husband before a woman can be lawful to her previous husband is a condition which has been imposed only in the case of a divorce and not in that of Khula'. No such fetter has been placed on the re-uniting of a woman who has obtained the dissolution of her marriage in the Khula` form. It is, therefore, very plain that since Khula and divorce are not the same and further since the pre-condition of re-marriage is only imposed upon the case of a divorce it cannot be clamped on the case of Khula`.
10. Even in the matter of divorce one finds in this very verse that the pre-condition of a marriage with a stranger before the separated spouses can re-unite has been mentioned in the case of divorce pronounced thrice. In the beginning of the verse it is a case of divorce which has been pronounced twice where--after it has been made permissible for the husband to keep his spouse in good fellowship or let her go with kindness. It requires no other authority to so hold, though there is no dearth of them.
11. Looked at from this angle therefore,' since the present case was one of Khula`, plaintiff No. 1 need not have re-married another person before returning into wedlock with Nazir Husain deceased.
12. Even assuming, as certain Jurists do, that Khula` is, in fact, an irreversible divorce, the position would not be altered. It has been seen already in the verse of the Holy Qur'an quoted above that it is only after a husband has pronounced an irrever--sible divorce three times, that the necessity of an intervening husband arises. If Khula` is performed by a decree of disso--lution of marriage by the Court the question of pronouncing talaq thrice does not arise and, therefore, the further question of them being an intervening husband before a second marriage between the spouses would similarly not arise. The same would be the case if in pursuance of the order of the Court tile husband were to pronounce one irreversible divorce against his wife. If in a suit for Khula` the husband pronounces divorce thrice, the result would be that all the effects of such a divorce would be attracted to the case and if the spouses were to decide later to enter into a re-marriage they will not be able to do so unless the wife marries another husband, who later on divorces her o: dies.
The following observation appearing at page 189 of Volume I of Tanzilur Rehman's Book may be quoted with advan--tage in this context. After quoting the verse, he proceeds on to observed- "This divorce (after which the reconciliation is permissible) is pronounced twice. After that the husband has either to keep her in accordance with the known procedure or release her with kindness.
Reference is thereafter made to the verse, already quoted above.
13. To the same effect are the following observations :- "And where the compensation is thus offered and accepted, a single divorce invertible takes place, in virtue of Khula`; and the woman is a answerable for the amount of it, because the Prophet ha~ said that Khula` effects an irreversible divorce and also, because the word "Khula"' bears the same sense of divorce, whence it is that it is classed with the implied expres--sions of it, and from an implied divorce a divorce irreversible takes place;; "Hedayat by Charles Hamilton, Vol. I, Ch. VIII, p, 112.
"When a man had repudiated his wife irrevocably, without giving her three repudiations, he may marry her again during her iddat, or after its expiration; but when he has repudiated her three times, being a free woman, or twice being a slave, it is not lawful for him to marry her again till she has been married by a valid and operative contract to another husband, who after enjoying her, has repudiated, or died, leaving her his widow. "Digest of Muhammadan Law by Neil B. E. Baillie, page 292).
Under the Hanafi and Shia Ismaili Laws, Khula` and mubarat have the effect of a single irrevocable divorce. (Muslim Law by Kashi Prasad Saksena, 4th Edn., p. 276)."
14. My conclusion, therefore, is that the re-marriage of Mst. Anwar Bibi with Nazir Husain deceased was valid in law and Mst. Salma-un-Nisa was therefore a legitimate offspring of the deceased and entitled to-share in his estate.
15. The question whether Salma-un-Nisa is the daughter of Nazir Husain deceased becomes one of fact as a result of the finding, that Mst. Anwar Bibi had validly re-married Nazir Husain deceased.
The finding of the learned lower Courts is that she was the daughter of the deceased. No misreading of evidence having been pointed out during the arguments before me, I am left with no option but to treat this finding of fact as conclusive and binding upon me in second appeal.
16. No other point was argued before me. This appeal is, therefore, dismissed with costs throughout.