FAZLI-E-SUBHAN Versus Mst. SABEREEN

MALIK HAMID SAEED, J .---The matter of divorce between the petitioner Fazle Subhan and the respondent/wife Mst. Sabreen took an advantage step in the earlier Writ Petition No.608 of 2002, when in spite of obtaining a decree for dissolution of marriage from the trial Court, the respondent/wife again came to an agreement of re-union with her husband by making an oral statement at the bar in this regard before this Court on 21-1-2003. The respondent/lady also desired not to go with their parents. This Court therefore ordered that she should be kept in ' Darul-Aman' and the learned counsel for the petitioner was asked to prepare the case keeping in view the Muhammadan Law/Sharia. The learned counsel for the petitioner on the next date of hearing withdrew the said writ petition and has now filed the instant writ petition on the ground that keeping in view the willingness of the respondent/lady, the parties may be allowed to live as husband and wife within the limits of God.

2. The father of Mst. Sabreen, in the peculiar circumstances has, however, raised the question of inability of the spouses to again re-unite the marriage tie without first observing the procedure provided by Islam in the shape of ' Halala'.

3. We have heard the learned counsel for the parties and have also gone through the relevant provisions of law and the Injunctions of Islam on the point.

4. Before discussing the matter in the light of Muhammadan Law/Sharia, we deem it proper to first refer to the relevant provisions of the Muslim Family Laws Ordinance, 1961 (hereinafter to be referred as the "Ordinance"). Through enactment of the Ordinance ibid, the Legislature has, to a great extent, trammelled and curtailed the arbitrary power of the husband to divorce his wife. It has abolished the practice of disapproved form of 'Talaq' and the mode prescribed in the Ordinance is that of a ' Talaq-e- Ahsan'. Moreover, it has been made mandatory that the notice of 'Talaq' should be given in writing to the Chairman of Union Council. The 'Talaq' shall be effected only if the efforts of reconciliation finally fails. Along that, under subsection (6) of section 7 of the Ordinance it is also provided that:--

"Nothing shall debar a wife whose marriage has been terminated by Talaq' effective under this section from re-marrying the same husband, without an intervening marriage with a third person, unless such termination is for the 3rd time so effective."

The law previous to the enforcement of the Muslim Family Laws Ordinance was making it obligatory for couples divorced by any mode of Talaq' other than ' Talaq-i-Ahsan' not to re-marry each other again, unless the wife marries another man by a valid contract, and the latter dies or divorces her after actual consummation and she marries her first husband after the period of ' Iddat'. Before re-marriage the parties had to prove that the bar to their marriage was removed by an intermediate marriage, consummation and dissolution, otherwise their marriage was not considered valid.

5. As stated above, the mode of ' Talaq' effected under the provisions of the Ordinance is almost that of 'Talaq-e-Ahsan' so the couples could re marry without any intervening marriage except where they have been divorced thrice and the third divorce has become effective. In that case they cannot re-marry without an intervening marriage. The plain reading of this section though implies that all kinds of ' Talaqs' have been made revocable without an intervening marriage and may be that its repugnancy to such extent could validly be agitated on the touchstone of the Qur'anic behest and the traditions of the Holy Prophet (peace be upon him), yet neither the vires of section 7 have been challenged nor the matter raised before us pertains to all kinds of ' Talaqs'. In this writ petition, we are only concerned with a "Talaq" obtained by the wife through Court decree in the shape of ' Khula'.

6. The principle of 'Khula' as laid down in various eminent commentaries on Muslim Law in the light of sayings of the Holy Qur'an and Sunnah is to the effect that when married parties disagree and are apprehensive that they cannot observe the bounds prescribed by the Divine law 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 'Talaq-ul-Ba'ayen' takes place. Hence Khula' is a repudiation with consent and at the instance of the wife in which she agrees to give a consideration to the husband for her release from the marital tie. The decree granted to the respondent/wife in this case is also of the kind of ' Khula' because she was found unable by the trial Court to properly establish her assertion for the dissolution of marriage, but keeping in view the abhorrence shown by the wife towards the husband in her statement as well as her pleadings and the extent of unpleasantness of matrimonial relation between the parties, which even culminated into criminal proceedings, it was held by the trial Court that the relation between the parties has reached to the extent where the re-union between the two is impossible and only separation will be in the interest of both the parties.

7. Maulana Muhammad Ashraf Ali in his book known as "Bahishti Zaiwar", at page 20 (Fourth Part) has stated on the point as under:--

Two Fatawas; one by Mufti Saifullah Haqqani of Jamia Darul -Uloom Haqqania, Akora Khattak, and the other by Mufti Muhammad Naeem, District Khateeb of Kohat are also on the file, wherein it is stated that:--

In view of the above, we are of the considered view that in case of divorce through 'Khula' it is not obligatory on the wife to re-marry a third person before entering into re-marriage tie with her first husband and same is the case here. The re-marriage with same husband of course would be subject to performance of another Nikah. Section 7(6) of the Muslim Family Laws Ordinance also allows such re-union without 'Halala', hence we see no restraint either in the Muslim Family Laws Ordinance or in the Injunctions of Qur'an and Sunnah, not to allow the prayer of the husband for re-union with his wife when she is ready to live again as wife of the petitioner within the limits of God.

8. The writ petition in hand for the aforesaid reasons is allowed. Presently, Mst. Sabreen is in ' Darul-Aman' at Peshawar under the orders of this Court, hence the Incharge of 'Darul-Aman, Peshawar is directed arrange for performing the Nikah of the petitioner with the respondent. After Nikah the respondent Sabreen should be allowed to go with the petitioner and needless to say that the minor children shall also accompany their parents. No order as to costs.

H.B.T./823/P Petition allowed.