2019 Y L R 1945

[Peshawar (Mangora Bench)]

Before Muhammad Ghazanfar Khan, J
NISAR---Petitioner
Versus
Mst. FAUZIA and 2 others---Respondents
Writ Petitions Nos.620-M and 661-M of 2018, decided on 7th February, 2019.
Family Courts Act (XXXV of 1964)---
----Ss. 5, Sched. & 10(4)---Suit for recovery of dower, maintenance and dissolution
of marriage---Divorce pronounced by husband prior to consummation of marriage--
-Effect---Dower, payment of---Scope---Family Court dissolved marriage on the
basis of khula and found that defendant-husband was entitled for recovery of seven
tolas gold as dower from the plaintiff-wife---Appellate Court modified the said
judgment and held that wife was entitled for the half of the dower fixed at the time
of Nikah---Validity---Marriage, in the present case, had not been consummated and
dissolved prior to valid retirement---If Talaq was pronounced by the husband prior
to consummation then wife was entitled for half of the dower fixed at the time of
Nikah---Where Talaq was pronounced on the demand of wife then she was not
entitled to half of dower---Marriage was dissolved by defendant-husband on phone,
therefore, he was bound to pay half of the fixed dower to the wife---Wife, in the
present case, was bound to return half of the dowered ornaments to the husband---
Judgment of Family Court was rightly modified by the Appellate Court---
Constitutional petition was disposed of accordingly.
Ayat No. 229 of Surah Baqara;by Musa Khan Jalazai PLD 1959 Lah. 566; PLD
1967 SC 97; AIR 1945 Lah. 51; PLD 2013 Pesh. 1; PLD 2013 Pesh. 12; PLD 2016
Pesh. 1; 1988 MLD 1207; Mst. Syeeda Khanatn v. Muhammad Sami PLD 1952 Lah.
113; Ayat No.35 of Sura Nisa; Ayat of the Holy Quran at page 293; Verse No.229 of
Sura Baqara; Tafseer Anwaar-ul-Bayan by Hazrat Maulana Muhammad Aashiq Elahi
Buland Shahri at p. No.323; Ayat No.237 of Surah Baqara; Ayat-e-Karima in Tafseer-
e-Haqqani by Al-Shaikh Abu Muhammad Abdul Haq Al-Haqqani at p. 236;
Muhammad Parwaish Khan for Petitioner (in Writ Petition No.620-M of 2018).
Muambar Khan for Respondent No.1 (in Writ Petition No.620-M of 2018).
Muambar Khan for Petitioner (in Writ Petition No.661-M of 2018).
Muhammad Parwaish Khan for Respondent No.1 (in Writ Petition No.661-M of
2018).
Date of hearing: 7th February, 2019.
JUDGMENT
MUHAMMAD GHAZANFAR KHAN, J.- Through this single judgment, I
intend to decide this W.P No. 620-M/ 2018 as well as the connected W.P No. 661-
M/2018 as both emanating from the judgment and decree dated 03.05.2018 passed
by learned Additional District Judge/Izafi Zilla Qazi, Swat at Khwaza Khela
whereby appeal of Respondent No.1/wife was partially accepted and judgment and
decree dated 05.01.2018 passed by learned Judge Family Court was modified.
2. Brief facts of the case are that Respondent No.1/wife brought a family suit
against the present petitioner/husband namely Nisar for recovery of dower in shape
of 3-1/2 tolas gold or its market value, recovery of maintenance and medical
expenses for one year till completion of iddat period and lastly she prayed for
dissolution of marriage on the ground of cruelty and inhuman behavior of the
petitioner/husband.
3. The petitioner/husband filed his written statement in rebuttal of the plaint by
raising so many legal and factual objections. After framing of issues and recording
pro and contra evidence, the learned Family Court vide judgment and decree dated
05.01.2018 partially decreed the suit to the extent of dissolution of marriage on the
basis of Khula and maintenance for iddat period in the tune of Rs.3,000/- per
month. The trial Court held the present petitioner entitled for recovery of 7 tolas
gold as dower from respondent/wife.
4. Being aggrieved, the respondent/ wife preferred appeal against the judgment
and decree of the trial Court. The appeal was partially accepted vide
judgment/decree dated 03.05.2018 and resultantly the respondent/wife was held
entitled for the fixed dower i.e. 3-1/2 tolas gold while decree of the trial Court
regarding maintenance for iddat period was set aside. Both the parties, being
aggrieved of the judgment/decree of the appellate Court, have challenged the same
through these petitions.
5. During the course of arguments, certain legal propositions surfaced which I
think are important for future guideline in family cases and need adjudication in the
light of laid down principles. For this purpose, I deemed it appropriate to appoint
M/S Abdul Halim Khan, Amir Gulab Khan, Malak Ahmad Jan, Gohar Ali Khan
Advocates as Amici Curie to assist the Court on the legal propositions:-
i) Whether proviso to Section 10 (4) of the Family Courts Act, 1964 is contrary
to the Act itself?
ii) Whether the ibid section is contrary to Article 35 of the Constitution of the
Islamic Republic of Pakistan 1973?
iii) Whether right of Khula is the absolute right of the bride and what are the
circumstances in which khula can be granted?
iv) In what circumstances half of the dower is payable to the bride before valid
retirement? and
v) Whether the process of reconciliation as given in the Family Courts Act is
proper?
I am grateful to all the learned senior advocates who properly assisted the Court
on the above said propositions of law. The learned counsel while arguing the case
mostly referred to Ayat No. 229 of Surah Baqara in context with right of Khula. Mr.
Abdul Halim Khan, Advocate also referred to some extracts from the book named
by Musa Khan Jalazai on the subject cited above. The learned counsel hectically
assisted the Court on the subject and besides the above named book, Messrs Abdul
Halim Khan, Malak Ahmad Jan Advocates as well as Mr. Hazrat Rehman Advocate,
who also later on joined the panel of Amici Curiae on the request of the Court, also
produced PLD 1959 Lahore 566, PLD 1967 SC 97, AIR 1945 Lahore 51, PLD 2013
Peshawar 1, PLD 2013 Peshawar 12, PLD 2016 Peshawar 1 and 1988 MLD 1207.
In all the above-referred judgments, the question of Khula has been resolved. On
the point of Khula, the basic judgment produced by learned Amici Curiae is AIR
1945 Lahore 51 in which the learned Judges, while reproducing a passage from
page 305 of the Baillie's Digest of Muhammadan Law (Part 1 Edn.2), have
discussed the question of Khula. The said passage as well as the dicta laid down in
the judgment on the point of Khula are reproduced herein below.
"Khoola means to put off; as a man is said to Khoola his garment when he puts it
off. It also means to demit or depress generally. In law it is the demission or
laying down by a husband of his right and authority over his wife for an
exchange to take effect on her acceptance by means of the word Khoola and
it is also validly effected by words of sale and purchase ... Its condition is
that of talak or repudiation and its effect one irrevocable repudiation".
These authorities have no room for doubt that in cases of khula, Mubaraat or
ordinary talaq it is a husband or a person (including the wife herself) who
has been authorized by the husband who can effect a khula divorce and that
it is not possible for a Qazi or a Court to do so (khula) in virtue of the
powers vested in either of them. The position taken by one of the trial
Courts that the khula could be given by the Court independently of the
husband's consent cannot, therefore, be accepted. This takes me to the next
question formulated in an earlier portion of this judgment. Learned counsel
for the appellant contends that the main object of a Muhammadan marriage
being sukun (satisfaction or comfort lit. peace of mind), (Muaddat) (love)
and (Rahmat) (kindness, sympathy or compassion) as deducible from the
following Verse of the Holy Quran (Part 21, Chap. 30, Verse 21, pp.792-3 of
Muhammad Ali's Translation:"
The concluding para, which is the gist of the above-referred judgment, is as
under:
"I am thus of the opinion that if an (Hakim) is not satisfied about (shiqaq)
(breach) or if he does not appoint arbiters from amongst the relations of
either spouses or even when so appointed they do not agree as to separation,
a divorce cannot be given. Moreover, according to the authorities to which I
have referred I consider it doubtful whether a divorce could be given
without the husband's consent even if the arbiters were agreed as to the
separation. As to the tradition about Jameelah wife of Sabit Bin Qais
reported, as above indicated, in Sahih-ul-Bokhari, it does not take us very
much further. It is true that a divorce had been effected in that case but it
must not be overlooked that the Prophet of Islam had ordered Sabit in that
case to divorce his wife Jameelah in the words "Talaqaha Tatliqa" (give her
an irrevocable divorce) according to the tradition reported at p.794 and
 "Amreho Jafarqaha" (the Prophet ordered him and brought about separation)
according to what is reported at p.795. In either case the divorce is reported
to have been granted by Qais and not pronounced by the Prophet although it
may be admitted that out of reverence that Muslims had for the Prophet of
Islam, it would have been impossible for Qais to disobey his order. The
point, however, remains that the divorce was granted by Qais and not by the
Prophet. For the above reason I am of opinion that a divorce could not have
been granted by the Courts in either of these suits on the grounds of
incompatibility of temperaments, dislike or hatred and they were rightly
ordered to be dismissed by the District Judges. The appeals consequently
fail and are dismissed with costs".
The Court was confronted with another judgment passed by this Court at the
principal seat in the case titled "Muhammad Faisal Khan v. Mst. Sadia and another"
(PLD 2013 Peshawar 12) wherein khula as well as the circumstances justifying
khula have been discussed. The relevant portions of the judgment are reproduced
herein below:
"15. "Khula" is release from matrimonial bond and can be exercised by the wife,
if the circumstances divulge that it is impossible for the parties to live
within the limits prescribed by the Almighty Allah and the compelling of
wife to live with her husband, will give birth to a hateful union, then the
Courts are bound to grant the right of "Khula" to a woman where she has
expressly claimed or has omitted to claim in her pleadings or in case the
other ground for seeking dissolution of marriage could not be proved ..
17. Under Muslim Law as well as the Law of the country, the wife is entitled to
terminate the contract of her marriage one sidedly like "Talaq", but for the
same she shall remit the dower amount, if not received, or pay it back to the
husband, if so received. Where there is no dispute existing between the
parties regarding dower, then in the terms of proviso to section 10(4) of the
West Pakistan Family Courts Act, 1964 a decree for dissolution of marriage,
shall be granted to the wife, immediately, on the failure of reconciliation in
pre-trial proceedings. However, if a dispute arises and the wife claims
dissolution of marriage, on recognized grounds for dissolution of marriage,
then the court shall proceed with the matter and record evidence of the
parties to ascertain her entitlement for dower and other benefits. If the
courts, after pro and contra evidence arrives at a conclusion that the husband
has compelled the wife by his arrogant, cruel and obnoxious nature or
behaviour, then she is to be held entitled for all the due benefits along with
dissolution of marriage. On the other hand, if the court finds that the wife is
adamant not to reside with the husband and the conscious of the court is
satisfied that there is no fault of the husband, but the wife claim dissolution
for her own personal reasons such as abhorrence or disliking of her husband,
then the wife shall be directed to restore the consideration of marriage to the
husband, for the reason that if she had developed extreme hatred and
disliking for her husband, then she should also not like the benefits in the
shape of dower from the husband".
 The august Supreme Court of Pakistan has rendered an elaborate judgment on
the topic in the case titled "Mst. Khurshid Bibi v. Baboo Muhammad Amin" PLD
1967 Supreme Court 97 wherein the term khula has been discussed in detail. The
relevant head-notes of the judgment are reproduced herein below.
(b) Muhammadan Law - Marriage - Concept - Marriage among Muslims not a
sacrament but a civil contract-Divorce---Man and woman on equal footing
in respect of rights of one against the other-If husband given right to divorce
wife, latter too entitled to separation by means of khula-Warning against
free exercise of such rights by husband or wife placed on moral rather than
legal plane, It is well-settled, that marriage among Muslims is not a
sacrament, but in the nature of a civil contract, such a contract undoubtedly
has spiritual and moral overtones and undertones, but legally, in essence, it
remains a contract between the parties which can be the subject of
dissolution for good cause. In this respect, Islam, the Din-al-Fitrat, conforms
to the dictates of human nature and does not prescribe the binding together
of a man and woman to what has been described as "holy dead-lock".
The Qur'an also declares: "Women have rights against men, similar to those that
the men have against them, according to the well-known rules of equity" It
would, therefore, be surprising if the Qur'an did not provide for the
separation of the spouses, at the instance of the wife, in any circumstances.
The Qur'an expressly says that the husband should either retain the wife,
according to well-recognized custom (Imsak-un-bil-ma'roof) or release her
with grace (Tasree-hun-bi-ihsan). The word of God enjoined the husband not
to cling to the woman, in order to cause her injury. Another hadith declares
Islam.) "Let no harm be done, nor harm be suffered in Islam". In certain
circumstances, therefore, if the husband proves recalcitrant and does not
agree to release the woman from the marital bond, the Qazi may well
intervene to give redress and enforce the Qur'anic injunctions.
(c) Muhammadan Law - Divorce - Khula -Opinions of commentators of Qur'an as
to meaning of verses bearing on "Khula" -Khula, whether equated with
talaq-Wife whether not entitled as of right to claim khula despite
unwillingness of husband to release her from matrimonial tie-Consent of
husband whether absolutely necessary -Whether even in case of khula it is
husband's right to grant divorce and no separation could be ordered by Qazi-
Words "Hakam" and "Mubara't" -Meanings-Khula, a charter granted to wife-
Woman has a right to seek khula if she has fixed aversion to her husband-
Classical instance of Sabit-bin Qais and Jamila-No possibility of
reconciliation between husband and wife-Idle to have recourse to formality
of appointing Hakams--Present trend of legislation on subject in Muslim
countries-Observations in Umar Bibi's case [ILR (1944) 25 Lah. 542] that
even where there was mutual dislike and extreme incompatibility of
temperaments between husband and wife there can be Muwaddat (~),
Sukoon (Z~) and Rehmat (J)-
Held: difficult to sustain-Terms on which decree for khula can be granted-
Claiming more than dower itself in lieu of khula Abominable on part of
 husband but, nevertheless, if he insists it is permissible.
The question that fell for consideration in the case was whether a wife, under the
Muslim law, is entitled, as of right, to claim khula, despite the unwillingness
of the husband to release her from the matrimonial tie, if she satisfies the
Court that there is no possibility of their living together consistently with
their conjugal duties and obligations. The learned Judges concurred in their
opinion and endorsed the view of Kaikaus, J., in Mst. Balqis Fatima v.
Najmul Ikram Qureshi P L D 1959 Lah. 566 that under Muslim Law, the
wife is entitled to khula, as of right, if she satisfies the conscience of the
Court that it will otherwise mean forcing her into a hateful union. S. A.
Rahman, J., delivered the leading judgment and S. A. Mahmood, J., added
reasons of his own for reaching J., added reasons of his own for reaching the
same conclusion.
The learned Amicus Curiae also referred to a judgment passed by Lahore High
Court in the case titled "Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi" (PLD 1959
(W.P.) Lahore 566). In the said judgment the right of wife for khula has been
highlighted. The relevant head-notes of the judgment are as under:-
(b) Muhammadan Law- Divorce- Khula-Wife entitled to dissolution of marriage
on restoration of what she has received from husband in consideration of
marriage if Judge apprehends that parties will not observe "limits of God",
i.e., harmonious married state as envisaged by Islam will not be possible-
Husband's assent not necessary- Judge may order partial or total restoration
of benefits- Wife's right to be enforced by whatever procedure is available in
Pakistan.
Held, (by the Full Bench) that the wife is entitled to a dissolution of marriage on
restoration of what she received in consideration of marriage if the Judge
apprehends that parties will not observe the limits of God.
This is not equivalent to granting a right to wife to come to the Court at any time
and obtain a khula if she is prepared to restore the benefit she has received.
There is an important limitation on her right. It is only if the Judge
apprehends that the limits of God will not be observed, that is, in their
relation towards one another, the spouses will not obey God, that a
harmonious married state, as envisaged by Islam, will not be possible that he
will grant a dissolution. The wife cannot have a divorce for every passing
impulse. The Judge will consider whether the rift between the parties is a
serious one though he may not consider the reasons for the rift.
That the wife may go wrong if dissolution is not ordered is rather a reason for
grant of dissolution for Islam prefers divorce to adultery.
The husband can effect a dissolution himself by pronouncing a divorce, while
the wife has to approach the Court and she is to get a dissolution only if the
Court regards further continuance of the marriage as not proper. But if it
does regard continuance of marriage as improper, there is no further
limitation on its jurisdiction to dissolve the marriage.
 Another judgment of the same Court in the case titled "Mst. Syeeda Khanam v.
Muhammad Sami" (PLD 1952 Lahore 113) is also on the topic of Khula according
to which:
--Khula and Mubaraat-Difference. In khula, the marriage is dissolved by an
agreement between the parties for a consideration paid or to be paid by the
wife to the husband, it being also a necessary condition that the desire for
separation should come from the wife. Where the desire for separation is
mutual, there too dissolution by mutual agreement for a consideration to be
paid by the wife to the husband is lawful; but it is described that case as
mubaraat.
The Karachi High Court in its judgment in the case titled "Mst. Shagufta Jabeen
v. Javed Iqbal and another" (1988 MLD 1207) discussed two classes of Khula by
holding that:
---Khula--Meaning, scope and import of--Khula' signifies agreement between
spouses for dissolving conjugal connection: it lies of compensation paid by
wife to husband out of her property--Two classes of Khula: By mutual
agreement and by order of Court--Dissolution of marriage by agreement
takes place by husband's pronouncing Talaq and the other by decree of
Court.-
In another recent judgment delivered in the case titled "Sajed Ullah v. Mst.
Shakeela Naz and 3 others" (PLD 2016 Peshawar 1) this Court observed that:
----S.5 & Schd.---Family Court, jurisdiction of---Scope---Pronouncement of
divorce on basis of Khula'---Procedure--Jirga/Arbitration proceedings,
validity of---Islamic provisions relating to marriage, maintenance and Talaq
were governed and regulated through Muslim Family Laws Ordinance,
1961---Exercise of right of Khula by wife was subject to satisfaction of
judicial conscious of court---Unlawful decisions through Jirga system were
practiced in Pakistan but when some provisions of law were violated by
Jirga members or arbitrators that could not be protected---Talaq through
Khula' could only be pronounced with intervention of court.
6. In all the above said judgments, the principle qua the above propositions has
been borrowed from the injunctions of Holy Quran, Ahadith and from the book ( )
by Musa Khan Jalalzai. Now let switch over to the first question that whether
proviso to Section 10 (4) of the West Pakistan Family Courts Act, 1964 is contrary
to the Act itself or otherwise, all the learned counsel were unanimous on the
proposition that this subsection is not only contrary to the Act itself but is also
against the mandate of Article 35 of the Constitution of the Islamic Republic of
Pakistan, 1973. The procedure for reconciliation in the Family Courts Act has been
provided in Section 10(3) called pre-trial reconciliation while post-trial
reconciliation is provided in section 12(1) of the Act ibid. Both the subsections are
reproduced below for ready reference:
10. Pre-Trial Proceedings.
(1) -------------------
 (2) -------------------
(3) At the pre-trial, the Court shall ascertain the points at issue between the
parties and attempt to effect a compromise or reconciliation between the
parties, if this be possible.
Subsection (1) of Section 12 reads:
12. Conclusion of trial.
(1) After the close of evidence of both sides, the Family Court shall make
another effort to effect a compromise or reconciliation between the parties
"within a period not exceeding fifteen days".
(2) -------------------
In subsection (2) of section 12 it is provided that if such compromise or
reconciliation is not possible, the Family Court shall announce its judgment and
give a decree.
In 2002 by amendment dated 01.10.2002, proviso was added to Section 10
subsection (4) which reads.
Provided that notwithstanding any decision or judgment of any Court or tribunal,
the Family Court in a suit for dissolution of marriage, if reconciliation fails,
shall pass decree for dissolution of marriage forthwith and shall also restore
to the husband the Haq Mehr received by the wife in consideration of
marriage at the time of marriage.
A bare reading of the proviso to section 10(4) makes it clear that if the pre-trial
reconciliation bears no fruit, the trial Court would have to pass a decree for
dissolution of marriage forthwith which leaves no chance for the trial Court to
attempt another reconciliation between the parties after recording of evidence as
envisaged in section 12 (1) of the Act.
7 The second question was that whether the above said proviso is contrary to the
mandate of Article 35 of the Constitution of the Islamic Republic of Pakistan. It
would be appropriate to reproduce the said Article for convenience.
35. Protection of family etc.---The State shall protect the marriage, the family,
the mother and the child.
Prior to insertion of the proviso to Section 10 subsection (4), the enactment
named West Pakistan Family Courts Act, 1964 was in line with Article 35 of the
Constitution. By adding the above said proviso though the intention of the
legislature was expeditious disposal of family cases but it affected the entire family
system and left negative impacts on entire family laws besides the family bond was
badly disturbed with addition of the said proviso. Before the above said
amendment, the ratio of divorce was not so high but after introduction of the said
proviso the ratio of divorce has raised hundreds of times than before. Not only this
but by this amendment the miseries of the spouses have been multiplied as the
litigation does not end at the failure of first reconciliation but it takes a fresh start
and the parties are indulged into a new litigation and a new controversy to prove or
disprove the payment of dower etc. So, this provision of law i.e. the added proviso
has not only adversely affected the family life but has multiplied the miseries of the
litigant spouses. Bare reading of Section 10(3) and Section 12(1) of the Family
Courts Act, 1964 leads one to the conclusion that both the sections are mandatory
in nature and the intention of the legislature was that to re-unite the spouses at any
stage of the case but after adding the proviso the purpose of the Act was
jeopardized. So, the proviso to Section 10(4) needs rectification or a suitable
amendment which could subsidize the agonies of the family and could protect the
family life as mandated by Constitution. In the said proviso, the word "shall" used
after "if reconciliation fails," may be substituted by word "may" or this proviso may
be omitted from the statute to bring it in consonance with the scheme of Family
Courts Act, 1964 and Article 35 of the Constitution of the Islamic Republic of
Pakistan, 1973.
8. The third proposition was that whether khula is absolute right of the bride or
otherwise and what are the circumstances in which the marriage can be dissolved
on the basis of khula. Most of the above judgments are unanimous on the point that
Khula can either be effected on mutual agreement of the spouses or with the
intervention of the Court. Though some of the jurists are not in agreement with the
view taken in the above referred judgements and their argument is that in Ayat
No.35 of Sura Nisa, the concept of Qazi figures nowhere. The Qazi, according to
them, is not authorized to dissolve the marriage between the spouses on the basis of
Khula rather the Qazi is supposed only to advise the spouses for reconciliation. But
most of the jurists are not in agreement with the above view taken by some jurists
as in case the role of Qazi/Court is withdrawn then there will be no end to the
process of reconciliation because in such an eventuality the agreement between the
spouses would become impossible nor the husband would ever like to divorce his
wife either under the influence of hatred or revenge, so, the concept of the above
said Ayat-e-Karima will become of no avail when the role of Qazi is excluded from
the process of reconciliation. The main ingredient/cause on which separation by
Khula has been based is the eventuality when it becomes impossible for the spouses
to live together within the limits prescribed by Almighty Allah. Though the divorce
is permissible but it has never been encouraged. In discussion on the above referred
Ayat of the Holy Quran, at Page-293 of the book.
It is clear from the above commentary of the renowned scholars that our religion
has laid too much stress on the peace and tranquility between the spouses while
separation between them has been discouraged by providing a proper way for
effecting reconciliation in case the relations between them become strained. Even if
the efforts for reconciliation, as ordained by the Holy Quran, are proved fruitless,
then as the last option the spouses have been allowed to part their ways when it
becomes certain that they, while living together as husband and wife, will not keep
the limits prescribed by Almighty Allah.
The situation of Khula has been described in Verse No. 229 of Sura Baqara
which reads.
In Tafseer Anwaar-ul-Bayan by Hazrat Maulana Muhammad Aashiq Elahi
Buland Shahri, at Page No. 323, khula has been discussed in the following words.
The above explanation of the Ayat-e-Karima leads one to the conclusion that Khula
is not absolute right of the wife as in the first instance it will be pronounced by
mutual consent of the spouses and in case of any conflict between the spouses, the
matter would be referred to Qazi for determination as is evident from the example
of Hazrat Sabit Bin Qais and his wife which was decided by the Holy Prophet
(Peace be upon him), so, in light of the above said Ayat of the Holy Book, the wife
is not equipped with the right of pronouncement of talaq herself on the basis of
Khula but it is either to be effected with mutual consent and in case of any conflict,
the matter will be referred to Qazi for decision.
9. Another proposition i.e the fourth one, which emerged during the arguments,
was that in which circumstances half of the dower is payable to bride if the marital
tie between the spouses becomes redundant before valid retirement. The learned
counsel for the parties and learned Amici Curie addressed this question as well in
the light of injunctions of the Holy Quran. Before dilating upon the above said legal
proposition, I will first take the original writ petitions filed by both the parties in
which all the above said questions/legal propositions cropped up. The present writ
petitions emerged from a suit filed by petitioner/plaintiff in W.P No. 661-M/ 2018
against the petitioner/defendant in W.P No. 620-M/2018 for recovery of 3-1/2 Tolas
gold ornaments or its price, recovery of maintenance and expenses incurred on
medicines etc for a period of one year and till expiry of Iddat period; she also
solicited for any other relief which the Court thinks just and appropriate. The
learned trial Court, after recording pro and contra evidence, decreed the suit on
05.01.2018 to the extent of dissolution of marriage on the basis of Khula by
directing the plaintiff to return seven tolas gold ornaments to defendant; she was
also granted maintenance to the tune of Rs. 3000/- per month for Iddat period while
rest of her claim was turned down. The plaintiff challenged the validity of the
judgment/ decree passed by the learned Family Court in appeal and the appellate
Court on 03.04.2018 partially allowed the appeal and modified the judgment/decree
of the Family Court to the extent of payment of 3 1/2 tolas gold ornaments in lieu
of Khula, so, both the parties assailed the judgment of appellate Court in separate
writ petitions.
Learned counsel for the petitioner/plaintiff in W.P No.661-M/ 2018 was of the
view that the judgments and decrees passed by both the Courts below are not only
in derogation of prevailing law but are also in negation of the Holy Quran and
Sunnah. He maintained that findings of both the Courts below are arbitrary,
capricious and fanciful being against the evidence available on the file and law
itself.
The learned counsel for the petitioner/ defendant in W.P No. 620-M/ 2018 also
termed the judgment/decree of the learned appellate Court as against the law and
material available on the case file and also against the mandate of Section 10(4) of
the Family Courts Act, 1964. He further argued that the learned appellate Court has
erred in facts and law by passing the impugned judgment and decree as the
judgement and decree of the trial Court was just, proper and was based on sound
reasons after proper appraisal of evidence available on the file.
 The main controversy between the parties in the above said writ petitions is that
whether plaintiff Mst. Fauzia was bound to return 7 tolas gold ornaments in lieu of
dissolution of marriage on the basis of Khula as held by the trial Court or she is
entitled to retain 3-1/2 tola gold ornaments (half dower) and deliver the remaining
half to defendant/husband as decided by learned appellate Court. To resolve this
issue, I will borrow wisdom from Ayat No. 237 of Surah Baqara which is the only
guideline provided for dissolution of marriage on the basis of Khula. Bare reading
of the above referred Holy Ayat leads me to the conclusion that if the marriage is
dissolved before valid retirement, the bride will be entitled to receive half of the
dower but the mandate of the above said Ayat starts from the words "if you divorce
them before valid retirement" then you will have to pay them half of the dower
fixed at the time of Nikah. The learned counsel for defendant/husband was of the
view that as 7 tolas gold ornaments were admittedly given to the plaintiff/wife and
marriage has been dissolved on the basis of Khula, so, the plaintiff/wife was under
obligation to return whole of the dowered property to defendant/husband. He stated
that as Talaq was pronounced on the whims and wishes of the plaintiff/wife, so, the
judgment passed by learned trial Court was correct, in accord with law and mandate
of Sharia but the learned appellate Court has erred in law by modifying decree
passed by learned trial Court.
It is proved on the record that the marriage has not been consummated and has
been dissolved prior to valid retirement, however, it is also proved on the record
that it is the defendant/husband who pronounced Talaq through telephone, so, in
such an eventuality the payment of half of the dower becomes incumbent upon him.
It will not be out of place to mention here and also in reply to legal propositions
emerged from the record of both the petitions that whether the eventuality of
divorce, prior to valid retirement, entitles the wife for half of the dower fixed at the
time of Nikah, the simple answer is that if Talaq is pronounced by the husband, as
mandated by the above said Ayat of the Holy Quran, then the wife becomes entitled
for receipt of half of the dower but in case the wife demands Talaq and on her
demand Talaq is pronounced by husband then she is not entitled to half of dower.
It is proved on the record that at the time of Nikah the plaintiff/wife had received
the gold ornaments. Though she has denied the receipt of dower ornaments but at
the same time she has admitted it correct that her photographs at the time of Nikah
had been taken and she had worn the ornaments, so, when the receipt of ornaments
is proved on the record then, as discussed above, the wife was bound to return half
of the dowered ornaments to defendant/husband. To this effect the judgment of the
learned trial Court was rightly set aside/modified by the learned appellate Court.
However, as the learned appellate Court has decreed half of the dowered
ornaments, so, no exception can be taken to the judgment and decree of the learned
appellate Court being within the mandate of law and Sharia.
10. The last proposition was that whether the process of reconciliation as given
in the Family Courts Act, 1964 is proper or needs some modification/ amendment.
All the learned counsel were of the firm view that the process of reconciliation as
mandated in the Act itself is neither proper nor in accord with the injunctions of
Quran, so, they were of the firm view that the process of reconciliation should be
changed and it should be brought in consonance with the injunctions of Quran to
lessen the agonies of the spouses and to lessen the frequent occasions of Talaq. This
question needs consideration of the legislature because no procedure is available
either in Section 10(3) or Section 12(1) of the Family Courts Act, 1964 for
conducting the reconciliation proceedings. Though the concept of reconciliation has
been borrowed from Ayat No.35 of Surah Nisa which reads:
Translation: If you fear a split between them (the spouses), send one arbitrator
from his people and one from her people. If they desire to set things right,
Allah shall bring about harmony between them. Surely, Allah is All-
Knowing, All-Aware.
But no procedure for the Courts is available in the entire Act to attempt
reconciliation in accord with the spirit of the above Ayat-e-Karima of the Holy
Quran, the result is that the Courts normally take the provisions of section 10(3) as
formality by writing a few words qua failure of reconciliation. In explanation to the
above Ayat-e-Karima, in Tafseer-e-Haqqani by Al-Shaikh Abu Muhammad Abdul
Haq Al-Haqqani at Page-236 writes that:
In another prominent book namely by Muhammad Ashiq Elahi Buland Shahri in
explanation to Ayat No. 35 of Surah Nisa states:
Similarly, in by at Page-173, in explana-tion to the Ayat-e-Karima it has been
written:
The above references are sufficient to lead one to the conclusion that Allah
Almighty has provided a way of reconciliation between the spouses, so, the present
law needs certain rectifications/ amendments to be incorporated in the existing
family laws especially Family Courts Act, 1964 with regard to the procedure of
reconciliation. As now a days the procedure of reconciliation is neither just, proper
nor in any way the existing procedure encourages the reconciliation process as
mandated by Sharia between the litigant spouses being at daggers drawn and bent
upon to part their ways with allegations and counter allegations, hence, in such
circumstances they can never be expected to think over reconciliation with cool
mind and good conscience. So, it is advisable that an amendment be introduced in
the Family Courts Act for reconciliation between the spouses in the manner as
discussed above according to the mandate of Holy Quran and Sunnah.
11. It is pertinent to mention here that the connected W.P No. 661-M/2018 was
announced as allowed in the open Court, however, at the time of writing the
judgment it appeared that the writ petition merited dismissal, so, the office was
directed to fix the said petition for re-hearing on 08.03.2019 while winding up the
discussion in this consolidated judgment was deferred till re-hearing of the
connected petition. Learned counsel for the petitioner/wife in the connected petition
was again heard at length, however, he could not produce anything material in light
of sharia to change my view which I have taken in light of the above detailed
discussion. So, as a sequel to my above discussion, the instant petition i.e W.P No.
620-M/ 2018 as well as the connected W.P No. 661-M/2018, being devoid of
merits, are dismissed. Copy of this judgment be sent to all the District Judges in
Khyber Pakhtunkhwa for future guideline of the family Courts. The office shall
also send copies of the judgment to Speaker of National Assembly and Federal Law
Secretary as well as to Speaker of Provincial Assembly and Secretary Law of
Khyber Pakhtunkhwa for consideration for the amendments suggested in the
judgment.
ZC/94/P Petitions dismissed.
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