Lawyers Directory Listing
صرف 1000 روپے میں 10 وکلاء تک کی براہِ راست رابطہ تفصیلات حاصل کریں اور کال یا واٹس ایپ کے ذریعے موزوں قانونی ماہر سے رابطہ کر کے اپنا معاملہ پورے اعتماد کے ساتھ آگے بڑھائیں۔
Civil Appeal No. 29 of 1987, decided on 7th July, 1988.
Marriage Nature and object of Marriage of a Muslim man and woman is a civil contract which is entered into for procreation of children Such contract if not wilfully violated would remain in force.
Khula Limits ordained by God Almighty, what are Objects of marriage Mode of performance Failure Effect Limits ordained by God Almighty connote performance of marital obligations honestly, faithfully and willingly by each one of spouses in relation to sex without violation of the rights of other spouse for achievement of object of marriage Where a wife for a real, not artificial, cause of any unlawful and wilful commission or omission of her husband, developed hatred towards him, which even at. the cost of loss or fear of injury, prevented her to perform her part of marital obligations willingly and happily, it amounted to failure of object of marriage.
Khula" Duty of Court Courts while deciding a case of dissolution of marriage on basis of Khula" have to find out as to whether on complaint made by wife against husband that due to unlawful acts wilfully committed by her husband, she had been constrained to develop deep hatred against him and there remained no possibility to narrow the gulf of hatred, such marriage would be required to be dissolved on basis of Khula".
Khula" Factors constituting basis for Khula" Admission by husband"s father in evidence that union of spouses had become impossible, testimony of other witnesses giving no better impression, involvement of husband in criminal cases and snatching of son by husband from wife coupled with treatment he gave to his wife, were factors which constituted basis for Khula" Marriage was dissolved on payment of specified amount of dower by wife to husband.
M.Y. Surakhvi for Appellant.
Lal Hussain for Respondents.
Date of institution: 15th June, 1987.
This appeal has been filed to call in question an order dated 30th April, 1987 passed by the Additional District Judge, Mirpur (Bhimber) whereby an appeal filed by the respondent No.l against a decree for dissolution of marriage passed in her favour by the Sub Judge Bhimber, on the basis of "Khula" was set aside and the decree for restitution of conjugal rights was passed in favour of the respondent No.l.
2. The facts which form background of this appeal briefly stated are that marriage of the appellant with the respondent No.l took place about 3 years before the appellant filed a suit for dissolution of marriage against the respondent No.l on 25th May, 1985. She alleged that during the time, she lived with the respondent No.l, he gave cruel treatment to her and about 8 months ago, gave her beating, relieved of her ornaments, snatched away her son and turned her out of the house and now the things have come to such a pass and hatred against the respondent No.l has developed in her mind to such an extent that their living as husband and wife and maintaining the limits ordained by Allah Almighty has become impossible therefore the wedlock is required to be undone even on the basis of "khula".
3. The respondent repudiated the allegation of maltreatment made against him in the written statement filed on 21st July; 1985 and also filed a suit for restitution of conjugal rights against her and submitted that he always treated the appellant with kindness but about 8 months ago, she went to participate in "Qur"an Khawani" held after the death of her father and in spite of efforts, did not return. This suit was also contested by the appellant.
4. The Sub Judge Bhimber held joint trial of both of the suits and found that the appellant failed to prove the habitual maltreatment of the respondent No.l. He, however, found that the son born to the spouses was with the respondent No.l and so was the case of the ornaments. He felt that the spouses cannot keep up the wedlock while remaining husband and wife and maintaining the limits ordained by Allah Almighty hence he dissolved the marriage on payment of Rs. 32 the amount of dower, vide order dated the 30th September, 1986. The suit filed by the respondent No.l for restitution of conjugal rights was, however, dismissed.
5. The respondent No.l called in question the decree for annulment of the marriage and the one, whereby his suit for restitution of conjugal rights was dismissed in the Court of Additional District Judge Mirpur (Bhimber) and the learned Additional District Judge vacated the decree for dissolution of marriage passed in favour of the appellant and decreed the suit for restitution of conjugal rights filed by the respondent No.l vide order, dated 30th April, 1987. He found that the appellant failed to set up a case, where on the basis of "Khula", the marriage could be dissolved. He held that there are four kinds of Limits (Hudood), firstly the limits where no addition or reduction is allowed such as Rakiat of Prayer, secondly where addition is permitted but the reduction is not allowed such as Zakaat and Sadqa, thirdly where reduction is allowed but addition is not permitted such as retaliation and fourthly where addition or reduction, as the case may be, depends upon the will of the other party such as obligations of the spouses.
6. The Counsel for the appellant has assailed the impugned order on the following grounds: --
(i) The limits detailed by the Additional District Judge in the impugned order are not meant to decide the case where a Muslim wife seeks dissolution of her marriage on the basis of "Khula"; and
(ii) The case in hand is fittest where the Judge is duty bound to dissolve the marriage on the basis of "Khula".
7. To elucidate point No.l he made reference to the passage where the Additional District Judge in his order has described the limits ordained by Allah Almighty and stated that these limits are not relevant and cannot be taken into consideration for deciding the case for dissolution of marriage sought to be dissolved on the basis of "Khula". These limits are required to be observed by Muslims whenever it is obligatory for them and in case of matrimonial disputes these limits cannot be taken into consideration.
8. To take up the factual side of the case; he made reference to the evidence brought on the file and stated that even the respondent"s father admits that the relations of the parties are so strained thdt the union of the appellant with the respondent No.l has become impossible and so was admitted by Muhammad Sulaiman Khan, another witness of the respondent No.l. He submitted that in the presence of this evidence, what else is required of the appellant to prove her claim for the dissolution of marriage and also cited the authorities reported in PLD 1959 Lahore 566, P L D 1967 SC 97, P L D 1977 AJ&K 67 and P L D 1984 AJ&K 36.
9. The Counsel for the respondents, took the stand that the appellant lived happily with the respondent No. l and went to participate in the "Qur"an Khawani" of her father but on the instigation of her mother (the respondent No. 2) did not return. The respondent No.l did all what he could have done to persuade her to return back. He took the elders of the family to the house of the respondent No.2 and held "Jirga" meetings too but the appellant was adamant not to return back. She made false allegations of maltreatment etc, in the suit which she filed for dissolution of the marriage in the trial Court but failed to prove them and this state of the facts shows that the stand of the appellant that due to the ill treatment of the respondent No.l there has developed hatred in her mind against the respondent No.l thus their living as husband and wife has become impossible while maintaining the limits ordained by Allah Almighty is a make up story. He prayed that the learned Additional District Judge after taking into consideration whole of the evidence brought on the file by the parties and the Islamic Injunctions, found that the appellant is entitled not to seek the dissolution of marriage even on the basis of "Khula" and the Additional District Judge is the sole Judge of the facts, therefore, this Court cannot grant any relief to the appellant.
10. The sole point pressed before me by the Counsel for the parties and I think, required to be seen is as to whether the allegation of the appellant that her living with the respondent No.l as a wife has become impossible, is real or it has been shown artificially to get undone the wedlock.
11. The marriage of a Muslim man and woman is a civil contract which is entered into for procreation of children and as long as this contract is not wilfully violated, it remains in force. The Allah Almighty has laid down in "Sura e Baqarah" "Aait" No. 229 that: ---
"If Ye (Judges) do indeed fear that they would be unable to maintain the limits ordained by Almighty Allah, there is no blame on them if the wife pays some compensation to the husband to seek divorce. These are the Rules which are ordained by Allah Almighty."
The limits ordained by God Almighty mean performance of marital obligations of his part, honestly, faithfully and willingly by each one of the spouses in relation to his sex without violation of the rights of the other spouse for achievement of the object of marriage. If a wife, for a real, not artificial, cause of any unlawful and wilful commission or omission of her husband, develops hatred towards him which even at the cost of loss or fear of injury, prevents her to perform her part of marital obligations willingly and happily, it amounts failure of the object of the marriage.
12. The Courts, while deciding the case where a wife seeks dissolution of marriage on the basis of "Khula", have to find out as to whether on the complaint made by wife against the husband that due to unlawful acts of her husband wilfully committed by him, she has been constrained to develop deep hatred against him and there remains no possibility to wedge the gulf, the marriage, on the basis of "Khula", is required to be dissolved.
13. In the case before me, leaving aside other evidence, even the father of the respondent No.l has admitted that the union of the appellant with the respondent No.l has become impossible. The testimony of other witnesses cast no better impression.
14. The respondent No.l is implicated in criminal cases too. He admits that he is an accused person in a college case and is an absconder and he is an accused person in Ahmed Din"s case too and, when these facts alongwith the treatment he gave, to the appellant 1 are taken into account, I think, the case of the appellant that it has 1 become impossible for her to live as wife with the respondent No.l, happily, is not untrue.
15. The spouses have a son too and the appellant alleges that the respondent No.l snatched the boy from her. Although this allegation is refuted by the respondent No.l and his stand is that the son was abandoned by the appellant herself so that the respondent No. 1 may feel tortured. This stand I think, cannot be true. No mother, at any cost, is ordinarily prepared to forsake her innocent son and leave him on the mercy of others unless she has been compelled by the circumstances which are beyond her control.
16. From the facts brought on the file, it is fully proved that the gulf between the parties is deep and real and there is no possibility that this gulf will be abridged, therefore, I think, the marriage of the parties is required to be dissolved on payment of "Khula".
17. The respondent No.l has not taken the stand of having paid anything beyond the amount of dower i.e. Rs. 32 to the appellant, therefore, the appellant is entitled to seek dissolution of marriage on payment of Ra. 32, the amount oaf "Khula". Consequently the appeal stands accepted.
A.A./342/H.A. Appeal accepted.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer