PIJ 1984 AJK 29 Present : ABDUL MAJEED
MALLICK, CJ
MUHAMMAD AKRAM—Appellant
versus
Mst. MAJEED
BEGUM—Respondent Civil Appeals Mo.
! & 9 of i984, decided on 3-5-1984.
(i) Khaia—
------ Dissolution of marriage by—Held :
Khula ,to be permissible on satisfaction of Judge regarding there
being-no possibility of spouses living as husband and wife within limits of
Allah—Gulf in relationship between parties expressed in terms of hatred and
despise entertained by wife against husband and chances of reconciliation found completely
eliminated—Held : Khula to be obviously enforceable. [P. 3l]A
Khula—
----- Dissolution of marriage by—Compensation—Offer of—Court— Discretion of—Held : Khula to be invoked by wife on
offering com-pensation to husband for her
release—Offer to return or repay all gifts
or part of it or even more voluntarily made by wife and accepted 'by husband—Held : -Khula to be
permissible or completion of such
oiler and acceptance—Held further : In case of such offer being not accepted by husband, discretion to be
left with Court to pronounce khula by
ordering return of gift or benefits received -by wife from husband in consideration of marriage provided Judge be satisfied regarding there being no possibility of
parties living happy and harmonious
married life within limits of God. [P. 33]fi
Hedaya by Charles Hamilton (p. 112) ref.
(iii)
Ebula—
------ Dissolution of marriage
by—Compeusation for—Wife invoking
khula making no offer of
compensation and rather declining to return ornaments admittedly given to her by husband
at time of marriage— Held : In absence of specification of ornaaieuts and
their weight, Court to fix value of ornaments and to order its payment to wife.
[Pp. 33
& 34]C & D
PLD 19S£ (W. P.) Lah. 566 ref
Mr. Shabid
Ahmad Ra there. Advocate for Appellant. Attorney
for respondent in person. Dates of
institution : 12.2 & 1-5-1984.
JUDGMENT
The appeals are
directed against the judgment and decree of the learned District Judge, Kotli, dated
17th January, 1984. As the appeals arise out of a common order, it is proposed
to decide the appeals together.
2. In both the appeals
the parties have raised controversy of 'khula' and the
consideration, ordered to be paid for
enforcing the divorce by 'khula'.
3. Mst. Majeed Begum brought a
suit for dirvorce on 29th March, 1981, in the Court of Additional Sub Judge,
Kotli. She sought decree for divorce on the
grounds of :—
(0 non- maintenance ; («) failure to perform marital obligations ; (Hi) cruelty ; and <khula\
4. It was averred that the marriage of the parties took place in 1978 and a sum of Rs. 3.000/- was fixed
as dower. The plaintiff lived 15 days with her husband when she was beaten and turned out of the house by the husband and
was compelled to live with her parents
till the institution of the
suit and during all this period she was neither maintained nor marital obligations were performed. During her stay with husband, she attributed
cruelty to him. Muhammad Akram, appellant, brought a counter suit for restitution
of conjugal rights and
injunction, on 7th April,
1981. In counter suit, Muhammad Akram averred that he donated golden orna ments of the value of Rs. 15,000/-, to his wife in
addition to incurring of Rs. 20,000/-
in marriage. It was claimed that his
wife lived with him for
a period of a year and half when she left to meet her parents but thereafter she was restrained by her parents from living with the husband. The trial Court consolidated the suits. It dismissed the suit for divorce and allowed decree for restitution of conjugal rights. On appeal, the learned District Judge recorded his disagreement with the finding of the trial Court. It dismissed the suit of Muhammad Akram allowed decree for divorce on the basis of 'khula', subject to payment of Rs. 5,000'-, as compensation by assessing cost of ornaments given in gift by husband to the wife. The order was challenged by the husband a* illegal and unwarranted by evi dence on record, whereas Mst. Majeed Begum expressed dissatisfaction with the order on account of fixing the liability in the sum of Rs. 5,000/-,
to be paid to husband, as price of the benefits.
a period of a year and half when she left to meet her parents but thereafter she was restrained by her parents from living with the husband. The trial Court consolidated the suits. It dismissed the suit for divorce and allowed decree for restitution of conjugal rights. On appeal, the learned District Judge recorded his disagreement with the finding of the trial Court. It dismissed the suit of Muhammad Akram allowed decree for divorce on the basis of 'khula', subject to payment of Rs. 5,000'-, as compensation by assessing cost of ornaments given in gift by husband to the wife. The order was challenged by the husband a* illegal and unwarranted by evi dence on record, whereas Mst. Majeed Begum expressed dissatisfaction with the order on account of fixing the liability in the sum of Rs. 5,000/-,
to be paid to husband, as price of the benefits.
5. Mr. Shahid Ahmad Rathore, the learned Counsel for
Muhammad Akram, appellant, assailed the impugned order on two counts :—
•
(i) That there was no cause to grant divorce by 'khula'
;
O'i) that the
compensation assessed by the trial Court was misconceived as the wife was under
an obligation to return all the ornaments given to her in gift by the husband at the
time of marriage and not the
value of such ornaments assessed prevailing at the time of marriage.
He cited PLD 1959 Lahore 566,
PLD 1968 Lahore 411
and PLD 1977 AJK. 67.
6. The first
objection pertains to absence of reason for seeking divorce by 'khula\ It
is well accepted that 'khula' is permissible on satisfaction of the Judge that the spouses cannot live
as such within the limits of Allah. Gulf in
relationship between the parties may be due to fault of either one of them but once it is expressed in terms of hatred
and despise entertained by wife against husband, whereby chances of
reconciliation are found completely
eliminated, 'khula' is obviously, enforceable. In order to resolve the objection, it is felt advisable to
refer to precedents. In Islamic
history, two well known precedents relevant to the period of Holy Prophet (peace be upon him) are the
cases of Jamila and Habiba. It is
reported that Jamila approached the Holy Prophet and addressed her complaint in the following manner : —
"Oh Prophet of God, Nothing can bring me
and him together. When I raised my veil, he was coming from the front with some men. I saw that he was
out of them the shortest and the ugliest. I swear by God I do not hate him because of
any defect in him, religious or moral, but I hate his ugliness. I swear by God that if it was not for
fear of God I would have spite at his face when he came to me. Oh Prophet of God, you
see bow handsome I am, and Sabit is an urgly person. 1 do not blame his religion for his
morals but I fear heresy in Islam."
The Holy Prophet (peace be upon him) resolved the proposition in the following fashion
:— '
"Are you prepared to return the garden
that he gave you". She said : "Yes, Oh Prophet of God, and even more".
The Holy Prophet
said : "No more, but you return the garden that he gave you", and
then the Holy Prophet said to Sabit : "Take the garden and divorce her".
In the second case, as revealed by
Imam Malik and Abu Daud, it was laid down :
"One day early in the morning when the
Holy Prophet came out of his house, he found Habiba standing there. He inquired
from her. what
the matter was and she said, "I and Sabit can never pull on . together''. When
Sabit appeared, the Prophet of God said: 'Tnis is Habiba, daughter of Sehl. She has
stated what God wished she should state'. Habiba said, "O Prophet of God, lei Sabit take from me
whatever he has given me for that is all with me". The Holy Prophet told Sabit
to take back what he had given her and to release her". In some versions the
words used are tlKhaie Sabilaha"
and in others
••fariqha". Both of
them meao "divorce her'*,
In both the cases, it is
found that the Holy Prophet (peace be upon him) administered 'khula on expression
of hatred by wife against husband, without going into depth of reasonableness
shaping attitude of the wife. On
satisfaction that spouses could not live ai rateable and harmonious life, they were allowed separation on return of garden
in first case and on return of
whatever was given to Habiba by her husband, in the second case. It is discovered that the Judge was to satisfy
himself that the attitude of wife was
such that there was lea^t chance of restitution of happy and harmonious life of the spouses and there was
apprehension that the wife may not
observe the limits ordained by God. It is noticed that the spouses who unite in the wedlock of marriage of free will,
affection and by choice, theirrelationi.
as such miy strain at any stage of marriage, sometime for genuine reasons and sometime for entertaining
ill-founded apprehensions. The relations of spouses ordinarily existed on
mutual behaviour. So far as good behaviour to each other continues
affectionate blended with mutual respect,
loyattv .and faithfulness, there is seldom a reason for suspicion or inhibition and disregard. Thus, the harmonious
state of life may result in disharmony and dispute any moment for breach
of one of the causes of happy life.
8. In t',ie present
case, it is evident from the pleadings and evidence of the parties, that
wife attributed serious allegations of cruelty, failure of husband to maintain
her and performance of marital obligations. In her testimony, Mst. Majeed
Begurn disclosed that she had developed so much disrespect and hatred for the husband
that under no circumstances, she could reconcile to restore harmonious and
happy life. In reply to a question in cross-examination, she attributed the
following words : In addition to that, it was admitted by the husband that on separation
of his
wife, he contracted a second marriage. His second wife was living with him and there was
a child as well from the second wedlock. It is disclosed that the parties are liv:ag in their
neighbourhood, at a distance of 10-15 yards.
The presence of second wife in the- house of her husband, may be a new cause for Mst. Majeed Begum to
nourish despise and contempt for the
husband. Be as it may, it is safely borne out of the record that the wife cannot live with husband within the
limits of God. The learned District
Judge is not found to have departed from the celebrated rules requisite for administration of 'khula1
. The objection is, therefore, not
sustained. The view finds support from Balqees Failing's case [PLD 1959 (W. P.) Lahore 566] and the same is reproduced below
: —
"Let it not be understood that our answer to the question
referred grants a right to wife to come to
the Court at any time and obtain '•khula'
if she is prepared to restore the benefit she has received. There is an important limitation on her
right of 'khula\ It is; only if
the judge apprehends that th; limits of God will not be observed, that
is, in their relation towards one another, the spouses will not obey God, that
a harmonious married state, as envisaged by
Islam, will not be possible that he will grant a dissolution. The wife cannot have a divorce for every
passing
impulse. The judge will consider whether the
rift between the parties is a serious one though he may not consider the reasons for the rift.
That the wife may go wrong if dissolution is
not ordered is rather a reason for grant of dissolution for Islam prefers divorce to adultery."
9. The second objection confines to
return of ornaments given to wife
as gift at the time of marriage by
the husband. It
was argued that Mst Majeed
Begum, in her testimony, admitted that she was given 5 to 6 tolas
golden ornaments as gift by her husband at the time of their marriage. The suggestion was made that in presence
of admission, by wife, it was obligatory
to return the
ornaments in original
for availing divorce by 'khula'. The
contention was opposed by suggesting that the ornaments, given as gift at the time of 'Nikah' were
not presently in possession of the wife as she sold the same to meet the expensses of litigation and main tenance allowance during the period of her
separation from her husband.
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10. 'Khula' is one of recognised kind of divorce which is invoked by wife on offering compensation to
husband for her
release. 'Khula' defined at page 112 in Hedaya by Charles
Hamilton as under :—
"......Khoola, in its primitive sense,
means to draw off or dig up. In law it signifies an agreement entered into for the purpose of dissolving a connubial connexion, in lieu of a
compensation paid by the wife to her
husband out of her property. This is the definition of it in the Jama Ramooz."
It is evident from the aforesaid definition
that divorce by 'khula' is ordinarily accompanied by compensation by wife
to her husband. The divorce by 'khula' is generally resolved by offer
made by wife to husband in the manner that she may return or repay to husband all
gifts or part ofj it or even more and on acceptance of such offer by husband. But when offer is made
voluntarily by wife and accepted by husband, 'khula' is permissible on
completion of such affer and acceptance. Contrarily, when a wife offers
compensation and the same is not accepted by husband, the discretion is left
with the Court to pronounce "khula' by ordering return of gift or benefits
received by wife from husband in consideration of marriage, provided
Judge was satisfied that parties could not observe the limits of God to live
a happy and harmonious married life.
11. It is already noticed in preceding cases that
Holy Prophet (peace be upon him) asked Jamila to return the garden to
her husband, when she offered more in
addition to the garden, but the Holy Prophet said : "No more, but you return the
garden that he gave you".
In the case of Habiba, she
made offer to return whatever she was given by the husband. The husband was ordered to take back what he had
given her to release her. In the first case, compensation
was fixed by the Holy Prophet (peace be upon him), whereas in the second case,
offer of compensation was made by the wife and the same was acknowledged by the Holy Prophet (peace be upon him). In the instant case, ttye wife invoked 'khula' but made no offer of compensation ; rather she declined to return the ornaments to husband. On satisfaction of the
learned District Judge that the spouses could not live within the Jimits
of Allah, he decided to order thf wife to pay Rs. 5,000 /'-, as compensation for availing
divorce by The amount was assessed as value of the ornaments prevailing
at the time of marriage. It was objected by
the learned Counsel for the appellant that the District Judge was not vested with the
authority to assess the value of
ornaments and to order payment of the
same to the husband It was suggest- ed that in case of administration
ofdivorce by *khu!a,' husband was entitled to return of ornaments in original. It is noticed that the present case is
a novel in the sense that the wife invoking 'khula' declined
to return the orna- ments, admittedly given
to her by husband at the time of marriage. In the circumstances the matter was purely left at the
discretion of the Court for its final
settlement. Ordinarily, gift in the
shape of ornaments received by wife
waa likely to be returned to husband.
But this cannot be done in presence
or absence of specification of ornaments and their weight. It is true that some of the ornaments were specified by husband but at the
same time difficulty cannot be removed
as the possibility of dispute of exact ornaments cannot be eliminated.
The choice available to the Court is to fix the value of the ornaments and to order its payment to the
husband. It is correctly suggested that the value of the
ornaments at present is much higher
than the value prevailing at the time of marriage. In case the present value is ordered to be relumed, the wife shall
have to pay more than
Rs. lO.QOQ/. Contrarily, if the
Court concludes that the respon dent is
entitled to the return of value of the ornaments, prevailing at the time of marriage, the vaiue already settled
by the learned
District Judge was correct
one. In well considered view of this
Court, as the ornaments are not likely to be returned for one of the reasons enumerated above, it
would be fair to ask the wife to
return her husband the value of gift, prevailing at the time of marriage, The reason for the opinion is that the husband
actually paid consideration for purchasing ornaments, as such he departed
with money to purchase the gift. As he
paid consideration for the gift, ordinarily, he was entitled to obtain the
same. It may be stated that the value of money at relevant time was
higher than the value pre- vailing at present, but at the same time, the
Court has to consider the collateral
attending circumstances. The
circumstances are that the wife being an orphan and not maintained during the period
of separation, was found equally eligible to get
maintenance allowance, from husband in presence of justification for living separate. However, the reasons as stated by the mother of the wife at the bar, is that the
ornaments were sold out to
meet the expenses of litigation.
The parties are pursuing their claim in the Courts of law for the last 3 years. Keeping in view the necessary expenses likely to be incurred
in prosecution of the
case, the statemeit made at the bar, cannot be lightly
brushed aside. Thus, I n view of
the peculiar circumstances of the case, the Court is not inclined to record its disagreement with the learned District Judge. In Balqis Fatima's case [PLD 1159 (W. P.) Lahore 566], the proposition received the
attention of the Court whereby it was
held as under :-—
"Islam does aot rb.rcc en ihe
spouses a life devoid of harmony and happiness. and n die parties
cannot live together as they should,
it permits a separation. If the dissolution is due to some default on the part of tbe husband, there is no
need of any restitution. If the husband is not in any way at fault, there has to be restoration of property received by the
wife and ordinarily it will b? of ihe
whote of ihr, propertv but the judge m&j take into consideration
reciprocal, benefits received by the husband and continuous living together a/so
may be at benefit received. The jurisdiction of the Qazi to dissolve a
marriage in cases of shiqaq is limited only by what is stated in the
Qur'an, i.e. "if you fear a breach" which means that there is
real discord between the parties, and in the case of 'khula' by the words
"if you fear that they will not observe the limits of God". While effecting
separation,
the Qazi adjusts the financial matters so as to direct a partial or total
restoration of the benefits received by the wife."
The authorities cited by the learned counsel for the appellant, do not
help him
as the principle enunciated above, find equal support in all the cases.
12. The result of the
aforesaid discussion is that this Court is not persuaded to record its disagreement
with the learned District Judge. The appeal filed by Muhammad Akram stands
dismissed with costs. The counter appeal filed by Mst. Majeed Begum is
equally not found persuasive and it is also dismissed,
(TQM) Appeal dismissed.
