GULZAR HUSSAIN Versus MARIYAM NAZ

ORDER

1. The petitioner Gulzar Hussain has filed this petition under Article 199(2) of Constitution of Islamic Republic of Pakistan, 1973wherein he has prayed to set aside the order, dated 31‑5‑1999 passed by respondent No.2 the Family Judge, Karachi‑South, in Family Suit No.379 of 1998 (Mst. Mariyam Naz v. Gulzar Hussain) on the grounds mentioned in the petition.

2. Brief facts of the case are that the respondent No.l Mst. Mariyam Naz filed suit for dissolution of marriage against the petitioner Gulzar Hussain by way of Khula. The Family Court Judge decreed the suit and dissolved the marriage between the parties in lieu of dower amount, which decree/order passed in suit is challenged in this petition.

3. Notice was ordered to be issued to respondent Mst. Mariyam Naz who put in her appearance. The parties on 1‑9‑1999 filed an application praying therein to dispose of the petition in the light of settlement arrived at btween the parties at .the intervention of well‑wishers on the following terms and conditions:‑‑

4. "(i) That the petitioner shall undertake to maintain the respondent Mst. Mariyam Naz and provide all sorts of necessities and luxuries accoiding to his status.

(ii) That the respondent is ready to join the petitioner as his wife withithe limits of Allah.

(iii) That the respondent No.l prayed that decree for dissolution omarriage by way of Khula', dated 31‑5‑1999 be recalled."

5. After the filing of this application learned counsel for the petitioner was asked to satisfy the Court as to how the parties can patch-up and start living as husband and wife after the dissolution of marriage passed by the Court on the basis of Khula'. On 22‑9‑1999 learned counsel for the petitioner produced the Fatwas from Dar‑ul‑Uloom, Taleem‑ul‑Quran; Dar‑ul‑Uloom, Farooq‑e‑Azam and from Jamia Farooqia wherein it has been stated that judgment of, Family Judge ordering dissolution of marriage with petitioner by way of Khula' did not have legal status and was not admissible in Shariah and the respondent continued to be in the Nikah of the petitioner and the respondent could not marry another person. As the question required deeper examination therefore, senior counsel Mr. Shafi Muhammadi was appointed as amicus curae to assist the Court in deciding the aforesaid issue.

6. I have heard the learned counsel for the parties and learned amicus curae.

7. The parties have moved an application today wherein they have prayed that in view of submissions made by amicus curae they may ballowed to remarry as Tajdeed‑e‑Nikah because dissolution by way of Khula' was pronounced by the Court subject to the return of dower amount by the respondent but the said amount of dower has not been returned by the respondent nor has been accepted by the petitioner, consequently, the pronouncement of the Khula' by the Court would be treated as one pronouncement of divorce which could be annulled by Tajdeed‑e‑Nikah even after the expiry of ninety days.

8. I find that submission made by the parties through the instant application has merit and substance. Reference may be made to (i) Majmua e‑Qawaneen‑e‑Islam, Vol. II, Qanoon‑e‑Talak written by Tanzil‑ur‑Rehman at page 369 and 597 runs :‑‑

UDRU PARAGRAPHS

(ii) The Hedaya or Guide by Charles Hamilton, 1975 Edition at page 112 of Chapter VIII and at page 107 runs: ‑‑

9. "Which occasion a single irreversible divorce. -- And where the compensation is thus offered and accepted, single divorce irreversible take s place, In virtue of Khula',".

10. At page 107 runs:‑‑

11. "In a case of irreversible divorce, short of three divorces, the husband is at liberty to marry his wife again, either during her Wit, or after its completion. as the legality of the subject still continues, since the utter extinction of such legality depends upon a third divorce; and accordingly until a third divorce takes place, the legality of the subject continues."

12. In the circumstances the pronouncement of Khula' by the Court would amount to a single divorce therefore, until the third divorce takes place the petitioner would be at liberty to marry his wife again, consequently the ‑parties can rejoin as husband and wife on the solemnization of Nikah without the intervention of third person. In the instant case there has been one divorce of Khula` pronounced by the Court which was also subject to compensation to be made by the respondent which compensation was neither made nor accepted by the parties, and parties have now consented to live as husband and wife therefore, m view of the authenticated observations made to the above books by learned scholars, judgment and decree of the Court in respect of dissolution of marriage between the parties on the basis of Khula' is annulled/set aside, consequently the petition stands disposed of.

13. H.B.T./G‑8)/K

14. Order accordingly.