KARIM ULLAH Versus SHABANA

SHAHZAD AKBAR KHAN, J.- -Karimullah the petitioner had married respondent Mst. Shabana according to the rites of Islam in the month of April, 1994. At some stage the relations between the spouses became strained and the respondent filed a suit in the Court of Aala Illaqa Qazi, District Dir Paeen at Timergara. The suit was for the purpose of dissolution of ,marriage, recovery of dower i.e. a house and 15 'tolas' of golden ornaments valuing ninety thousand rupees. Maintenance allowance at the rate of Rs.1,000 was also claimed for d period of two years preceding the filing ,of the suit and onward till decision thereof. The dissolution was sought on the ground of cruelty of the petitioner due to which the respondent-wife had made an attempt of suicide. The wife was also expressive in the plaint that she had developed extreme aversion against the petitioner and it was impossible to live with him within the limits of Allah Almighty. Another suit for the recovery of dowery articles was also filed by the wife. Both the suits were consolidated and were hotly resisted by the petitioner by filing written statement. The parties adduced their evidence as they willed in support of their respective contentions. The trial Court on evaluating the rival evidence of the parties came to the conclusion that the petitioner had practised cruelty on the respondent and she was entitled to the dissolution of marriage. Consequently the suit of the respondent was decreed on the ground of ' Khula' . The dower house was considered as ' Zar-e-Khula' (urdu) However, 15 'colas' golden ornaments as dower, Rs.24,000 as maintenance besides the dowry articles were decreed in favour of the respondent. Appeal was filed by the petitioner which was heard and decided by the learned Zila Qazi, Malakand at Batkhela. With regard to the dowry articles the learned Appellate Court settled the matter by handing over some of the articles to the respondent while the rest of the dowry articles were relinquished by the respondent as the petitioner took oath that the rest of the articles were not in his possession. The appeal of the petitioner was dismissed on 2-6-2001 and the decree of the trial Court to the extent of 15 'tolas' ornaments as dower and Rs.24,000 of the maintenance allowance was kept intact. Dissatisfied with the judgments of the two Courts below the same have been questioned by way of the instant writ petition.

2. Mr. Muhammad Ijaz Khan, Advocate learned counsel for the petitioner has vehemently argued that when the marriage was .dissolved by the learned trial Court by invoking the doctrine of 'Khula' the respondent was not entitled to 15 'tolas' of the golden ornaments which was a part of the dower. He maintained that when the wife seeks the dissolution of marriage on the ground of 'Khula' the husband becomes, as a matter of right, entitled to the restitution of the dowered property and in case he has not already paid the dower, he is released of the liability of paying the dower or any part thereof.

3. On the other hand Mr. Esa Khan, Advocate learned ,counsel appearing on behalf of the respondent-wife has argued that the respondent had sought the dissolution of her marriage on the ground of cruelty and alternatively the 'Khula' was solicited by her. He further argued that notwithstanding the fact that the 'Khula' has been mentioned in the plaint but in her statement recorded before the trial Court she did not invoke the ground of 'Khula'. The learned counsel taking support of the views of the various Muslim jurists argued that where the wife is compelled to resort to 'Khula' due to the cruelty of the husband, in that case the husband cannot be relieved of his liability to pay the dower amount to the wife. He urged that the judgments of the two Courts below are well founded and in consonance with the Islamic Jurisprudence.

4. The rival contentions of the learned counsel for the parties leads us to formulate and resolve the question:

"Whether the Court has the powers to refuse the return of the dowered property/amount to husband or to release him from payment of dower where due to his cruelty she was compelled to resort to 'Khula'.

5. The concept of 'Khula' is enshrined in Verse No.229 of Sura Baqara in the Holy Qur'an which reads as follows:--

Translation: "229. Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take from women aught of that which ye have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if ye fear that they may not be able to keep the limits of Allah, in that case it is no sin for either of them if the woman ransom herself. These are the limits (imposed by) Allah. Transgress them not: For whoso transgresseth Allah's limits, such are wrong-doers."

Dealing with the proposition which emanates from the above mentioned holy Verse Maulana Abul Aala Maudoodi in 'Tafheem-ul-Qur'an (Vol.I), page 175 has commented in the following diction:--

What we can gather from the Qur'anic dictate is that in general it is not lawful for the husband to get back what he had given to the wife as dower/'Mehr' 'Khula' has however, been made an exception to the general rule. Precisely the abominability of receiving back from the wife of what has been benefacted or gifted can be assessed when such an action has been synonymised, as per Hadith, with the licking of the vomitted substance by the dog.

6. The history of 'Khula' commenced with the two oft-quoted instances of 'Khula' ordered by the Holy Prophet (s.a.w.s.). Both relate to Sabit-ibn-?Qais. In the first incident his wife Jamila came to the Holy Prophet (s.a.w.s.) and stated her complaint in the following words:--

"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 f hate his ugliness. I swear by God that if it was not for fear of God I would have spit at his face when he came to me. Oh Prophet of God, you see how handsome I am, and Sabit is an ugly person. I don't blame his religion or his morals but I fear heresy in Islam."

On hearing this the Prophet of God said to Jamila:

"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 arid divorce her"."

The second incident is of Habiba, the other wife of Sabit which is almost in all its characteristics. is identical to the first incident,

Dealing with the subject of 'Khula' in the historical judgment rendered by a Full Bench of the Lahore High Court in a writ petition captioned as Mst. Balqis Fatima .v. Najm-ul-Ikram Qureshi PLD 1959 (W.P.) Lahore 566, in paragraph 6, it was significantly observed that:

"It should also be noted that the Holy Prophet had ' ordered' restitution of property by Habiba which indicates that the dissolution was not for fault of the husband, If the divorce was due to cruelty, there is no reason why the dower should have been returned."

7. From the above incident/s it becomes transparently clear that there was--

(1) ??????? incurable incompatibility of the temperament to accept Sabit as a husband,

(2) ??????? that there was absolute impossibility for the spouses to observe the prescribed limits of Almighty Allah in matrimonial living, and

(3) ??????? that there was no element of cruelty but only the aesthetic feeling which worked to invoke the right of ' Khula'.

8. In Durrul Mukhtar (Urdu) Vol. II, translated by Maulvi khurram Ali at page 181 it is stated that,

In Fatawa-e-Alamgiri (Urdu) Vol. II at page 507 it is mentioned that,

In Ainul Hidaya (Urdu),translated by Allama Maulana Syed Amir Ali at page 270 it is stated thus:

In Majmooa Qawaneene Islam (urdu) by Dr. Tanzeel-ur?-Rehman, Vol. II at page 580 the view on the instant proposition is given as follows:--

In Fathul Bari (Urdu) at page 402 it is stated:

To make more clear the meaning of 'Noshooz' (urdu) we may refer to Verse No.129 of Sura Nisa (urdu) of the Holy Qur'an.

Similarly in Kitab-ul-Fiqa Ala Mazaahib-e-Arbaa (urdu) written by Abdur Rehman Aljazeeri and translated in Urdu by Manzoor Ahsan Abbasi, Vol. IV at page 485 in the marginal notes on the subject it is given as follow:--

9. In Khurshid Bibi's case PLD 1967 SC 97 his Lordship Mr.Jsutice S.A. Rehman, as he then was, while speaking for the Bench, at page 149 observed that-- "it is necessary for the Court to ascertain in a case of 'Khula' what benefits have been conferred on the wife by the husband as a consideration of the marriage and it is in the discretion of the Court to fix the amount of compensation."

These findings of the august Supreme Court provide answer to the argument that in case of 'Khula' husband would be entitled to receive back the entire dower property.

10. We also receive with approval the rationale of the judgment delivered by a learned Single Judge in case of Anees Ahmad v. Uzma PLD 1998 Lah. 52, wherein it was observed thus-? "the position is summed up in Al-Huidaya;-? ' if the cruelty is from the side of the husband his realising a compensation from the wife for her relinquishment (Khula) is disapproved. If insubordination is from the wife, in that case, the husband may take back only what property which he had given to her ... ... ... ...

It was further observed that in case where ' Khula' is decreed on the basis of cruelty the Court may not give any compensation to the husband."

11. The Qur'anic verdict of (Arbi) when carefully considered in its context it confers entitlement upon the husband to receive consideration from wife i.e. the dower which he had paid to her, in lieu of dissolving the marriage. However such an entitlement, when looked into in the light of opinion of 'Faqeeh's' (jurist of Islam) does not appear to be absolute and can adversely be effected by the elements .of 'Noshooz' i.e. cruelty. The receiving of any consideration by the husband; when he is at fault of practising cruelty, is termed as (urdu) and even (urdu). Islam is undoubtedly a religion which preaches peace, endorance, love and mutal affection. It aggressively condemns cruelty in all its formation and manifestation. It encourages positive conduct and positive actions. The words (urdu) is a clear negation of cruelty from the side of husband to the wife. Moreover the principle (Arbi) (let no harm be done nor harm be suffered in Islam) is enunciated by our religion.

12. On a logical and philosophical dimension of the matter it can also be argued that a husband if left unchecked shall apprehend no loss if he, for any reason, develops a disposition to break the bondage of marriage and resorts to cruelty with a mind to compel the wife to demand 'Khula' instead of giving her 'Talaq' in this way he will secure for him the benefit of retaining or getting back the dowered property/amount. Such a cruelty would un?doubtedly be a purpose-oriented one of which the law and Courts must take notice so as to keep the husband off the oche of cruelty.

13. Thus on the consensus of opinion of the notable jurists of Islam referred above with the breviate of their respective commentaries and in the light of the cited judgments we legitimately feel to hold that where the Court, through a legal, cogent and convincing evidence, comes to an irresistible conclusion that the husband because of his machismonian attitude and displaying his masculine aggressiveness has compelled the wife to ask for G dissolution of marriage on the ground of 'Khula', then the Court shall have the power to refuse the return of the dowered property/amount to husband or to release him from the liability of payment of dower. Thus the question that we have formulated and are confronted with is answered in the positive.

14. In the instant case it has been proved by the wife, through tremendous evidence of high order and quality that she was subjected to torture to such an extent that she went to the extent of making attempt to commit suicide. We, therefore, on the legal and factual plan discussed above, M hold that the learned trial Court has done no wrong in giving the golden ornaments to the wife which is the part of the dower. Consequently we see no force in this writ petition and, therefore, it is dismissed with no order as to costs.

M.B.A./769/P ????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.