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Civil Appeals Nos. 27 and 32 of 1986, decided on 14th July, 198
‑‑‑Khula'‑‑Evidence‑‑Restoration of benefits received by wife from husband in lieu of Khula'‑‑Part of testimony of wife regarding snatching of ornaments by husband remaining unchallenged‑‑Effect‑‑Failure of husband to question allegation of snacthing of ornaments at time of turning his wife out of his house and failure of wife to lead corroborative evidence, held, would lead case of parties in balance‑‑Question of restoration o properties in lieu of Khula', would be determined in lights of overall consideration leading to separation of parties.
‑‑‑Khula'‑‑Restitution of property received by wife‑‑Requirement‑‑Where dissolution of marriage was due to some fault on part of husband, there would be, held, no need of any restitution of property received by wife from husband at time of marriage or thereafter wife would have to return entire property received by her when husband was not at fault.
P L D 1967 Kar. 233; Muslim Law (Mahommedan Law) by Ameer kli, p. 466; Mst. Balqis Fatima v. Najm‑ul‑Ikram Qureshi P L D 1959 Lah. 566 and Hedaya ref.
‑‑‑Khula'‑‑Property received by wife from husband‑‑Restitution of‑ Husband while leaving wife contracting second marriage and living in foreign country‑‑No attempt by husband for reconciliation with first wife‑‑First wife not receiving equal treatment from husband as compared to second wife‑‑Such facts coupled with expenses of litigation and rigour of protracted litigation, held, would help wife, to return part of value of property received from husband‑‑Consideration for Khula' reduced to amount offered by father of wife which would adequately meet ends of justice.
‑‑‑Khula'‑‑Appeal (civil)‑‑Appellate jurisdiction, exercise of‑‑While confirming decree of divorce on basis of Khula' passed by Trial Court, High Court, in exercise of appellate jurisdiction, reduced consideration for Khula' payable by wife to husband in the circumstances of case.
Ch. Ali Muhammad for Petitioner.
Ch. Muhammad Taj for Respondent.
Dates of institution: 8th and 21st April, 1986.
Both these appeals are directed against the order of learned District Judge, Mirpur, passed on February 16, 1986, whereby decree for divorce on the basis of 'Khula' on return of Rs.15,000 the consideration value of ornaments, passed by learned Sub‑Judge, Mirpur, in favour of Mst. Zahida Bi, was partly modified by reducing the consideration to Rs.10,000. The point raised in the appeals confines to settlement of consideration likely to be paid by wife to husband for availing divorce by 'Khula'. As the appeals arise out of a common order, these are disposed by single judgment.
2. Mst. Zahida Bi and Muhammad Maqsood married in 1976. They lived as wife and husband for about six months, whereafter Mst. Zahida Begum, according to her pleadings, was turned out of the house. It was averred that the behaviour of husband was very cruel during their living together and last time, by giving beating and snatching her ornaments, she was turned out of the house, in consequence thereof, she felt constrained to reside with her parents. The suit for dissolution of marriage was instituted on July 5, 1979. Divorce was sought on following grounds:‑
(i) for non‑payment of maintenance allowance for a period of more than two years;
(ii) for snatching the ornaments (property) belonging to wife;
(iii) for having a second wife who was living with husband in England; (In equal treatment);
(iv) cruelty; and
(v) Khula'.
A counter suit for restitution of conjugal rights and perpetual injunction was instituted on September 30, 1980. In his suit, Muhammad Maqsood averred that marriage of the parties took place four years earlier and a sum of Rs.32 was fixed dower and the same was paid promptly. It was alleged in the counter suit that Mst. Zahida Bi lived with her husband for more than two years and refused to return home from the house of her parents a year and a half before the filing of the suit. It was further averred that golden ornaments weighing 19 Tolas and 10 pairs of clothes were taken by her at the time of her departure from her husband's house. Both the suits were consolidated and disposed of together. The learned Sub‑Judge allowed divorce on the ground of 'Khula' subject to return of the value of ornaments to the tune of Rs.15,000. Mst. Zahida Begum feeling dissatisfied to the extent of consideration liable to be returned to husband, challenged the order of Sub‑Judge in first appeal. The learned District Judge reduced the amount to Rs.10,000. This order is disputed by the parties in second appeal.
3. Ch. Ali Muhammad, the learned counsel for Mst. Zahida Bi, argued that in her pleadings and testimony, Mst. Zahida Bi unequivocally stated that the ornaments were snatched from her by husband when she was given beating and turned out of the house. This part of the testimony of wife went unchallenged in cross‑examination. In the view of the learned counsel, failure of defendant Muhammad Maqsood to question this part of the evidence in cross‑examination tentamount to admission. He cited P L D 1967 Kar. 233. The contention was opposed by Chaudhry Muhammad Taj, the learned counsel for the opposite side. It was emphasised that the testimony of Mst. Zahida Bi is to be appraised as a whole and even if one part of her evidence is not disputed, it shall not be deemed to be admitted by the opposite side. He further argued that settlement of consideration is purely the discretion of the trial Court and once this .discretion is exercised, it is not subject to interference in appeal.
4. It is admitted that Muhammad Maqsood resided in United Kingdom at the time of institution of suit for dissolution of marriage and the counter suit. This is amply borne out from the power of attorney appended with his pleadings. Moreover, the witnesses produced by the parties unanimously accept that Muhammad Maqsood is residing in England alongwith his second wife. It is also admitted that he is having two children from his second wife whereas there is no issue from the marriage in dispute. This factual aspect is admitted by Muhammad Khalil, Muhammad Sadiq, D.Ws. and Said Muhammad, attorney of Muhammad Maqsood. Mst. Zahid Bi admittedly lives with her parents in village Potha Bainsi since the time of her separation. The considerations justifying divorce by Khula', not being in dispute, need not be re‑appraised.
5. The consideration in the sum of Rs.15,000 value of ornaments delivered to Mst. Zahida Begum by Muhammad Maqsood at the time of marriage, was assessed by the learned Sub‑Judge as its market value. The trial Court felt persuaded that divorce by Khula' was permissible on return of the value of ornaments, the gift delivered to wife by husband at the time of marriage. The learned District Judge, nevertheless, felt advised, by keeping in view the period of separation and the expenses incurred in litigation, to reduce the amount of consideration from Rs.15,000 to Rs.10,000.
6. The proposition of divorce by Khula' rests on interpretation of verse number 229 of Sura Baqr. This verse, according to its exposition by Muslim jurists, permits dissolution of marriage by a wife on passing consideration to the husband, whether such dissolution is effected by agreement between the spouses or only at the instance of wife by an order of the Court.
7. In Muslim Law (Mahommedan Law) by Ameer Ali, at page 466, it is described:
"'When married parties disagree', says the Fatawai Alamgiri, following the Hedaya and the Badaya, 'and are apprehensive that they cannot observe the bounds prescribed by the divine laws that is, cannot perform the duties imposed on them by the conjugal relationship, the woman can release herself from the tie by giving up some property in return in consideration of which the husband is to give her a Khula', and when they have done this a Talak‑ul‑bain would take place'."
The mode of procedure pointed out in the above passage is founded on the principle laid down in the Koran; and whilst it has assumed only one form under the Sunni Law, under the Shiah it has taken two.
When the wife, owing to her aversion to the husband, or her unwillingness to fulfil the conjugal duties, is desirous of obtaining adivorce, she may obtain a release from the marital contract by giving up either her settled dower, or some other property; such a divorce is consequently called Khula'. When a divorce is effected by mutual consent on account of mutual aversion, it is called mubarat which operates as a release and discharge on both sides."
8. In Mst. Balqis Fatima v. Najm‑ul‑Ikram Qureshi P L D 1959 Lah. 566 (F.B.), Mr. Justice B.Z. Kaikaus J (as he then was), at page 582, advanced analytical interpretation of the proposition in the following words:‑
"Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the 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 be of the whole of the property but the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a 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."
9. The aforesaid view provides a guidance to determine the consideration payable by wife to husband to avail divorce by Khula'. Fatawa‑i‑Alamgiri, following the Hadaya and the Bedaya, describes that a woman can seek her release from the tie of marriage by giving up some property in return, in consideration of which she gets Khula' from her husband. Mr. Justice B.Z. Kaikaus, in his analytical reasoning, also arrived at the same conclusion as the learned Judge observed that if the Court arrives at the conclusion that dissolution is due to some fault on the part of the husband, there is no need of any restitution. Conversely, when the husband is not at fault, there has to be restored all property received by the wife. Ordinarily, in that case, the wife shall have to restore the whole of the property. Nevertheless, the Judge may take into consideration reciprocal benefits received by husband and also consider the benefit of their continuous living together. In present case the delivery of ornaments is admitted by Mst. Zahid Bi but in her pleadings and evidence, she has specifically deposed that the ornaments were snatched from her at the time when she was forced to leave the house. This part of the testimony of Mst. Zahida Bi, of course, goes unchallenged. The subordinate Courts failed to take into consideration this aspect of the case as corroboration of this part of the evidence was insisted upon. In my estimation, Mst. Zahid Bi was unable to provide corroboration to this allegation, as the witnesses produced by her were not supposed to be present at the time of her departure from the house of her husband. At the relevant occasion, only the inmates of the house were supposed to have knowledge of the alleged action of the husband and they being on the side of the husband, naturally, could not support the claim of the wife. But at the same time, it was quite natural that parents of Mst. Zahida Bi must have been told of this sad part of the story and her forcible eviction from the house. Her father, who appeared as a witness, failed to subscribe to the claim of Mst. Zahida Bi. The failure of husband to question of allegation of snatching of ornaments at the time of turning his wife out of his house and the failure of wife to lead corroborative evidence I leave the case of the parties in balance. In these circumstances, the question of restoration of properties is to be determined in the light of, over all considerations leading to separation of the parties.
10. The concensus is that when dissolution of marriage is due to some fault on the part of husband, there is no need of any restitution of property received by wife from husband at the time of their marriage or thereafter. However, when husband is not at fault, then the position is otherwise, as in that case wife has to return the entire property so received by her. In present case, it is noticed from the evidence and pleading of the parties that Muhammad Maqsood, after turning out Mst. 1 Zahida Bi from his house or their separation, married second wife, took her to England where they were living a happy life. After second marriage, no attempt is shown to have been made to reconciliate with Mst. Zahida Bi to take her to live with him. In other words, Mst. Zahida Bi did not receive equal treatment from her husband. In addition to that, Mat. Zahida Bi is struggling to seek separation for last manyl years and her fate remains undecided till decision from the final Court notice can be taken of the fact that she is maintained by her parents, as Muhammad Maqsood even prior to the institution of the suit, wad not shown to have offered maintenance allowance. These facts, coupled with the expenses on litigation and the rigour of protracted litigation, help Mst. Zahida Bi to return part of the value of ornaments received from her husband. Muhammad Iqbal, father of Mst. Zahida Bi, present in the Court offered to pay a sum of Rs.4,000 as consideration for' availing Khula'. In view of the facts listed above, I am satisfied that return of Rs.4,000 as consideration for availing Khula'. In view of the fact listed above, I am satisfied that return of Rs.4,000 for availing' divorce by Khula' adequately meets the ends of justice.
The appeal filed by Mst. Zahida Bi against her husband,' therefore, succeeds. The decree of divorce passed in favour of MrIt. Zahida Bi by the trial Court is upheld with the modification that the consideration for Khula' payable by the wife to the husband shall be rupees four thousand. The appeal preferred by Muhammad Maqsood obviously fails. Costs shall follow the event.
A. A. Order accordingly.
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