1. ' Mst. Mussarat Jabeen (respondent herein) filed a suit against her husband Syed Muhammad Ali (petitioner herein) being Family Suit No,517 of 2000 in the Court of II Senior Civil and Family Judge South at Karachi for dissolution of marriage by way of Khula'. After recording the evidence of the parties, the Court granted the relief sought by Mst. Mussarat Jabeen and ordered dissolution of marriage by way of Khula' by judgment dated 11-12-2001. Muhammad Ali has filed this petition and has assailed the said judgment of the Family Judge on the ground that the Family Court did not give a finding that the two parties cannot live as husband and wife within the limits prescribed by Allah and that the reasons given for allowing dissolution by way of Khula' are bitterness of litigation between the parties and that Khula' is a vested right of the wife which are not sufficient grounds for dissolution of marriage by way of Khula'. In the alternate he contended that the husband had not given his consent to release the wife from the bond of marriage on receiving consideration from her and as such the order of the learned Judge was contrary to Muslim Law and not valid. Learned counsel for the petitioner in support of his first contention referred to the case of Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97 at page 136), paragraph 16, wherein it has been observed:-- "The right is not, however, an absolute right by which the wife can herself dissolve the marriage, but is a controlled right. The success of her right depends upon the Qazi's reaching the conclusion that the spouses cannot live within the limits of God, this being the rule of decision provided for his guidance."
2. ' In reply to the aforesaid arguments, Mr. Muhammad Ramzan, learned Advocate for the respondent, submitted that after dissolution of the marriage, the husband had sent a legal notice dated 26-12-2001 to the wife calling upon her to collect her dowry articles within seven days after receipt of the notice, failing which he shall not be responsible to return the said dowry articles which proved that he had accepted the verdict of the Family Judge and is now estopped from resiling from the acceptance of dissolution of marriage by way of Khula' or challenging the same.
3. ' I have heard the arguments of Mr. Badrul Alam, learned counsel for the petitioner in support of the admission or this petition 4nd the arguments of Mr. Muhammad Ramzan, Advocate for the respondent (wife) for dismissal of the same and have also read the relevant verses of the Holy Koran relating to divorce and dissolution of marriage, various commentaries on the subject and the judgments of the superior Courts.
4. ' The right of the wife to obtain dissolution of marriage from her husband, among others, is stated in the verses relating primarily to divorce in The Holy Qur'an in Suraa Al-Baqrah II, Verses 229-230 in the following words:-- "Divorce is twice; then either to retain in the recognized manner or to release in fairness. And it is not lawful for you to take back anything from what you have given them, unless both apprehend that they would not be able to maintain the limits set by Allah. Now, if you apprehend that they would not maintain the limits stated by Allah, then, there is no sin on them in what she given up to secure her release. These are the limits set by Allah. Therefore, do not exceed them. And whoever exceeds the limits set by Allah, then Lhose are .The transgressor."
5. ' Maulana Mufti Muhammad Shafi in his commentary on the Ayaat relating to divorce has elaborated as follows: "But there are occasions and situation when all efforts for reconciliation fail and the parties in conflict rather than benefit by the desired results of the Nikah relationship, feel that being married together is a mutual punishment. Under such conditions, terminating this husband-wife relationship becomes, in itself, a way-out promising comfort and peace for the parties. Therefore, the Shari'ah of Islam did not, as did some other religions, patently confirm that the marriage relationship must remain unbreakable under all conditions, Going a step ahead, it had framed a specific law for divorce and the dissolution of marriage. The right of divorce was given to man alone in whom the ingredients of thought, end-perception and forbearance were more pronounced then in a woman. This free choice was not given in the hands of women so that the disposition of being 'overtaken by transitory emotions, which is more pronounced in women as compared to men, may not become the cause of divorce."
6. ' But women too, were not totally deprived of this right lest they are left with no alternative but keep groaning under the cruelty of her husband. She was given the right to take her case to a Court presided by a Judge who qualifies as such under the rules of Shariah, present her complaint, prove her case, and get the marriage annulled, or secure a divorce."
7. (Emphasis added).
8. ' (See: Ma'Ariful Qur'an" by Maulana Mufti Muhammad Shafi, Maktaba-e-Darul-Uloom, Karachi, First Authorized Edition, 1996, Volume 1, pages 572 and 575).
9. ' Abul A'la Maududi in his Treaties "The Meaning of The Quran", has translated the same Ayaat 229- 230 in the following words: "Divorce may be pronounced twice, then either the wife be kept honourable or parted with gracefully. And it is not lawful for you to take back anything out of what you have given them. There is, however, an exception to this, if you fear that they might. Not be able to keep within the limits imposed by Allah, there is no harm if both agree mutually that the wife would obtain divorce by giving something as compensation to the husband. These are the bounds set by Allah; therefore do not violate them, for those who violate the bounds of Allah are the transgressor."
10. ' Thereafter, in his commentary, Maududi has commented on the subject as follows:-- "251. The husband has no right to demand anything of the dower given to the wife in consideration of the marriage or ornaments, clothes etc., given to her as gifts. It is utterly against the moral principles of Islam to ask for the return of anything given to another as a present or gift. The Holy Prophet has likened this disgraceful behaviour to the licking up of his own vomit by the dog. It is indeed very shameful on the part of a husband to keep aback or demand, after the divorce, what he himself gave to his wife. As a matter of fact Islam exhorts the husband who divorces his wife to give her something at her departure. (See Al-Baqarah, 1:241).
252. When the divorce is obtained by the wife from her husband by compensation, it is called Khula' in the Islamic Law. If the husband and the wife agree between themselves on some terms regarding this, the same shall be enforced. But if the case goes to the Court, it will first of all try to ascertain whether the wife really dislikes her husband so much that she cannot live with him any longer. Then if the Court is satisfied that they cannot live together happily, it shall fix as compensation anything that it considers proper, and the husband shall have to accept that and divorce his wife. The jurists are generally of the opinion that the compensation should not exceed the dower given by the husband.
11. [See "The Meaning of , the Koran" by Abul A' la Maududi, Islamic Publication (Pvt.) Ltd., Lahore, 3rd Revised Edition, 2002, Volume 1, page 165].
12. ' A woman's right of divorce is also stated in Surah Al-Nisa, II, Ayat 128, as follows:-- "And if a woman fears ill-treatment or aversion from husband, then there is no harm in entering into a compromise between them. And the compromise is better."
13. (Ma'Ariful Quran, Vol. II, pages 583-584, Surah Al-Nisa-IV, Verse 128).
14. ' Maududi has translated the same verse slightly differently in the following words:-- "When a woman fears ill-treatment or an aversion from her husband there is no harm if the two make peace between themselves (by means of a compromise); after all peace is the best thing."
15. ' From the aforesaid Ayaat (verses) of the Holy Koran it appears that a woman has been given the right to obtain her release from the bonds of marriage; however, the right is to be exercised when the husband and wife apprehend that they would not be able to maintain the limits set by Allah or the wife fears ill-treatment or aversion from her husband. Neither Mufti Muhammad Shafi nor Abul A'la Maududi in their Commentaries have dilated on the term "limits stated by Allah" used in Surah Al-Baqarah II, Ayaat 229-230. However, several respected Commentators of the Holy Koran have written exhaustively on the subject. Dr. Tanzil-ur-Rehman in his "Code of Muslim Personal Law" has quoted the following in his commentary: "The limits prescribed by Allah in this verse mean the direction regarding a happy social life. Same is the assertion of Ta'us as well.
16. [Al-Jassas: Ahkam al-Qur'an, Cairo, 1335 A.H., Vol.III, p.391].
17. ' The verse thus means, if there be such a dislike between the husband and the wife that it becomes difficult to lead their life in mutual love and happiness the wife may, on payment of compensation, obtain Khula' from the husband. That is, Khula' is permissible when there is no possibility for happy union between the couple and there is the apprehension that due to their extreme differences they shall not be able to live in accordance with the dictates of Shari'ah.
18. However, if the fault lies with the husband, in the fulfilment of his obligations to his wife, the acceptance of compensation for Khula' by him is forbidden in Shari'ah. ....According to Ibn Rushd the philosophy of Khula' is that it is a right within the power of wife similar to the husband's right of divorce. Thus, when life becomes troublesome for the wife she may make use of her right of getting Khula' effected. Likewise, when some trouble arises for the husband due to the wife, he may make use of his right of divorce.
19. [Ibn Rushd: Bidayatul Mujtahid, Cairo, 1379 A.H., Vol. II, p.68]. ....This verse demands that each of the spouses should ponder and search their hearts whether the wife shall be able to fulfil her obligations to the husband which are incumbent upon her (but which she abhors) through the marriage contract. If she cannot do so, there is nothing wrong for her in paying the compensation to her husband; neither there is anything wrong for the husband in accepting compensation for Khula' from the wife. This verse addresses the couple. The pronoun stands for both of them. It has further been said that "Khawf" means "knowledge". That is to say that the couple must be knowing (or understanding) that they would not be able to maintain the limits ordained by Allah.
20. ' In the above Qur'anic verse, maintaining amiability of association by both (the couple) has been made incumbent (impliedly). The verse is addressed to officials and arbitrator who, not being officials, are engaged in such affairs. A woman's not maintaining the limits ordained by Allah is her neglecting or avoiding of the performance of her duties towards her husband as well as not obeying him at all. This has been stated by Ibn Abbas, Malik b. Anas and generality of jurists. Abu Al-Hasan (al-Karakhi) and group alongwith him are of the view that, "When the wife tells her husband that she would not obey any of his orders, or she shall not carry out any of his biddings, Khula' shall become valid. Imam Sha'bi said that the phrase, (not maintaining by the spouses of the limits of God) implies malice, enmity, and disobedience on their part. Ata b. Abi Rabah has said that Khula' shall be valid when the wife tells her husband: "I hate thee, I do not love thee and so on".
21. It shall not be committing sin if the wife pays her husband any compensation for his effecting Khula'.
22. [Al-Qurtabi: Al Jami al Ahkam al-Qurani, Cairo, 1936 A.D., Part III, p.137]. (Emphasis added).
23. ' Baydawi in his commentary on the Holy Qur'an. Anwar alTanzil known as Tafsir Baydawi, has said: "And it is not lawful of you that you take anything of that (i,e, the dower) what you have settled on your wives. It is stated that Jamila felt strong aversion against her husband Thabit b. Qays. She came to the Prophet of God and said, "Neither I nor Thabit are there (i,e, I and Thabit cannot co- exist); and nothing can bring our heads together (alluding to posture in intercourse). By God, I do not find fault with his piety and morality. But I have infidelity in Islam. I cannot bear him on account of my deep aversion. I raised a corner of the flap of the tent, I saw him coming alongwith a few men. He was the blackest, shortest and ugliest of them all". This occasioned the revelation (of this verse). Jamila, therefore, secured Khula' from her husband restoring to Tahbit, as compensation, the garden that was given to her as dower by him. This verse is addressed to the officials because the matter of taking and giving compensation relates to them. It is they who have to pass orders regarding this matter when it is brought before them".
24. (See Tanzil-ur-Rehman. A Code of Muslim Personal Law, Islamic Publishers, Karachi, 1984 Edition.
25. Vol. I, pp 525 to 527).
26. ' In the case of Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97 at 137 to 139, S.A. Mahmood, J. Of the Supreme Court highlighted the history and the conclusion of the recorded tradition relating to Khula' in the following terms: "21. The recorded traditions of Khula' by the Holy Prophet and the Caliphs lend strong support to the above conclusions. The classical instance of Khula' is that of the wife of Sabit bin Qais to be found in various collections of Ahadith including Bukhari, Tirmizi, Abu Daud, Nisai and Ibne Maja, but there are two versions, one referring to Jamila and the other to Habiba. Some Commentators say that they relate to two different wives of the same Sabit. The instance of Jamila, as stated in Mishkat- ulMussabih (Volume II, page 703) is that Jamila went to the Holy Prophet and said that she did not blame her husband Sabit bin Qais about his character or piety, but she feared "heresy in Islam". The Holy Prophet asked her if she was prepared to return the garden given to her as a dower, and on her replying "yes, Oh Prophet of God, and even more", the Prophet said: "No more, but you return the garden that he gave you". She agreed and the Prophet said to Sabit: "Take the garden and divorce her". According to another version in Bukhari when she agreed to return the garden, the Prophet ordered Sabit and he separated her. The other tradition of Habiba as stated by Imam Malik and Abu Daud, is that one day early in the moaning when the Holy Prophet came out of his house, he found Habiba standing there. He enquired from her what the matter was. She said, "I and Sabit can never pull on together". When Sabit appeared the Holy Prophet said "This is Habiba daughter of Sahal. She has stated what God wished she should state". Habiba said: "0 Prophet of God, let Sabit take from me whatever he has given me, for that is all with me". The Holy Prophet orderded. Sabit to take back what he had given her, and to release her. In some version the words used by him are mentioned as "khale sabilaha" and in others "Fariqha" which both mean "divorce her". About this very instance, there is another version reported by Abu Daud and Ibne Gharir as coming from Hazrat Aisha, stating that Sabit had beaten Habiba and broken her bone. But it is clear enough that she made no complaint on this score, and demanded dissolution of her marriage on account of her aversion from his ugliness. The case is one, therefore, of Khula' in which there was an order of separation by the Holy Prophet.
22. In the days of the Holy Prophet, as reported by Ibne Abbas in Mishkat, Volume II, page 702, Barirah was married to Mughis, who was intensely in love with her, .And used to roam about the lanes of Madina, weeping and crying in quest 'of her. One day the Holy Prophet expressed a wish to her that she should go back to her husband. "Is this an order" asked Barirah, and as the Holy Prophet said: "No, I am only trying to intercede", Barirah did not go back to her husband. This instance has been used in Mst. Saeeda Khanum v. Muhammad Sami as implying that as the Holy Prophet did not force Barirah to go back to her husband. He was not likely to force Sabit bin Qais to divorce his wife. With the greatest respect, it appears to me that this instance instead of reflecting adversely on the efficacy of the cases of Jamila and Habiba, as instances of Khula' under the orders of the Holy Prophet enhances their value. The difference between those cases and the case of Barirah is that in those cases the wives approached the Holy Prophet demanding a dissolution of their marriage, while there was no such demand by Barirah, and, the Holy Prophet decided the cases referred to him as head of the State of Islam, and ordered the husband to release them on restoration of benefits conferred. Thus, Khula' was decreed by the Holy Prophet on the ground that the wives having developed intense hatred for their husband, it had become impossible for them to live with him and to perform their marital obligations. No clearer proof can be had of Qazi's power and authority to dissolve a marriage in appropriate case by Khula'. In the case of Barirah, there being no cause before him as a Qazi or a Judge, he gave no order and merely tendered an advice. Her instance also proves that the Holy Prophet was not in favor of forcing an unwilling wife to live with her husband, where there is fixed aversion." (Emphasis added).
27. ' In light of the above, it can be safely stated that a wife has been given the right to approach a Court to obtain dissolution of the marriage bond from her husband if she had developed such dislike or aversion that she cannot live with him under any circumstances and she pays consideration to the husband for the same.
28. ' The answer to the first set of objections to the impugned judgment advanced by Mr. Badrul Alam is given in the case of Khurshid Bibi itself on page 137 wherein the Honourable Supreme Court has clearly stated that Khula' is the right of the wife and Talaq is the right of the husband and that the only distinction between the two is that Khula' B is a form of dissolution of marriage for a consideration to be paid by the wife where a Qazi or a Judge decides that it is a fit case for dissolution. In the present case, the wife has clearly stated, inter alia, that the attitude of the husband is not good with her, he quarrels with her on petty matters, abuses. Her and sometime beats her also. The husband's counsel in the cross-examination of the wife could not break her testimony wherein she clearly reiterated:-- "I am not ready to join the defendant at any cost. I only want Khula' from this Court, and I am also ready to forego my dower amount in lieu of Khula".
29. ' On the basis of the aforesaid statement, the learned Family Judge came to the conclusion that the wife had made out a case for Khula' consequently he exercised the jurisdiction vested in him and ordered dissolution of the marriage accordingly. Mr. Alam could not show any statement from the evidence of the wife recorded before the Family Judge that she was willing to live with her husband. After the wife had categorically stated that she was not ready to live with her husband at any cost, she, wanted 'Khula' from him and was ready to forego her dower amount, the learned Family Judge had no choice but to come to the obvious conclusion that it was not possible for the two parties to live within the limits prescribed by Allah and consequently allowed the wife's prayer for Khula'.
30. ' Neither the judgment of the Honourable Supreme Court, the commentaries of various authorities referred above nor the narration of the incident of dissolution of marriage of Jamila and Habiba with Sabit by way of Khula' by the Holy Prophet (p.b.u.h.) any where states that it is incumbent upon the Judge to use the phrase "it is not possible to live within the limits prescribed by Allah" at the time of passing an order for dissolution of marriage by way of Khula. It is apparent that when a wife asks for Khula', she does so because it is not possible for her to live as husband and wife within the limits prescribed by Allah as discussed above. If the judge after recording the evidence of the wife decides to dissolve the marriage by way of Khula', he does so because he comes to the conclusion that it is not possible for the parties to live happily as enjoined by Allah. The omission by the Judge to mention the phrase "not possible to live within the limits prescribed by Allah" does not in any way make the order of dissolution by way of Khula' ineffective, illegal, unlawful or contrary to the law relating to the dissolution of marriage by way of Khula'.
31. ' The alternate argument of Mr. Badrul Alam that the husband had not agreed to release the wife from the marriage ties and, therefore, the Khula' granted by the Court is not valid, is apparently based upon a different view taken by the Hanafi, Shafi, Maalki and Hambli Schools of Thought.
32. According to their view based on the interpretation of Koranic Ayaat and Hadees relating to Khula', the latter is a transaction based on an agreement between two parties of which offer, acceptance and consideration are essential ingredients. They argue that just as there cannot be any agreement without acceptance of an offer, there cannot be any Khula' without the acceptance of the offer made by the wife to the husband to release her on payment of some consideration.
33. Consequently, Khula' can take place only on the acceptance of the wife's offer by the husband and a Judge cannot force the husband to divorce the wife or order dissolution of the marriage by way of Khula' if he comes to the conclusion that it is not possible for the husband and the wife to live within the limits prescribed by Allah and the wife is willing to forego her dower or pay some other consideration for her release. No doubt the views of the respected Imams command high respect but the Honourable Judges of the Supreme Court exercising their powers of Ijtehad have drawn a different conclusion from the Ayaat of the Holy Koran and precedents of the Holy Prophet as expressed in the case of Khurhseed Bibi (See B.Z. Kaikaus) v. President of Pakistan (PLD 1980 SC 160).
34. Under Article 189 of the Constitution of Islamic Republic of Pakistan, all decisions of the Supreme Court, to the extent it decides a question of law is binding on all other Courts in Pakistan.
35. Accordingly, the judgment of the Supreme Court in Khursheed Bibi's case is the law declared in respect of Khula' and is binding on this Court. The alternate argument of Mr. Badrul Alam is accordingly rejected.
36. ' Even otherwise, the argument of Mr. Alam regarding the petitioner (husband) not accepting the offer of the wife is belied by the notice dated 26-12-2001 issued by Sarwar Muhammad Khan, Advocate on behalf of the petitioner addressed to respondent No,1 (wife). In the said letter after stating the fact of dissolution of marriage by way of Khula', the Advocate asked the wife to collect her dowry article through her authorized agent within seven days of receipt of the letter whereafter he warned that the husband would not be responsible to return the same. The letter, which has not been denied by Mr. Alam, clearly indicates that the husband had consented to the grant of Khula' by the Family Judge on the wife expressing her hatred for her husband and offering to forego her dower. The argument clearly reflects the mala fide conduct of the husband which cannot but be deprecated.
37. ' The arguments of the learned counsel impugning the judgment of the learned Family Judge are contrary to law and the evidence on record. I am convinced from the evidence on record that it is not possible for the petitioner and respondent to live together within the limits set by Allah and it was fit and proper to dissolve the marriage by way of Khula' as prayed by the wife. The learned Family Judge has reached the right conclusion and passed the order in accordance with law. The petition is mala fide and is accordingly dismissed in limine.