P L D 2014 Federal Shariat Court 43
(a) Constitution of Pakistan---
----Art. 203-D(c)---Federal Shariat Court, jurisdiction of---Declaration of a law/provision to be repugnant to the Injunctions of Islam---Fatwas, verdicts and views of scholars, relevancy of---Federal Shariat Court was vested with the power to declare laws/provisions of laws against Injunctions of Islam as defined in Art. 203-B(c) of the Constitution, on the touchstone of only the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h)---As such scope and jurisdiction of Federal Shariat Court was limited only to the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h)---Federal Shariat Court could not declare any law or provision of law repugnant to Injunctions of Islam merely on the basis of views, verdicts and Fatawa issued by the scholars whosoever they might be---Unless there was .a clear specific "Nass" of the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h) prohibiting or enjoining commission or omission of any particular act, Federal Shariat Court could not declare any law or provision of law as repugnant to the Injunctions of Islam.
(b) Islamic jurisprudence---
----Marriage---Objectives of marriage in Islam.
Following were the main objectives of marriage in Islam:
(i) Procreation of children, preservation and perpetuation of the human race, through legitimate sexual intercourse between a man and a woman whose relationship as husband and wife was publicly declared and made known to the society at large.
(ii) Protection of morals through legally justified satisfaction of natural biological urges and, resultantly, curbing pre-marital or extra marital sex.
(iii) Establishment of sound emotional, spiritual, happy, lovely and peaceful life-long companionship.
Al-Quran Verses 4.1; 2:223; 4:25; 5;5 and 30:21 ref.
(c) Islamic jurisprudence---
----Marriage---Scope---Civil contract---Mutual rights and obligations--Marriage was not a sacrament; it was not irrevocable but, in essence, it was a civil contract between husband and wife which credted mutual rights and obligations---Marriage contract was a life-long commitment, meant to last happily for the whole life between husband and wife.
Al-Qur'an Verse 4:21 ref.
(d) Islamic jurisprudence---
----Marriage, termination of--- "Divorce" and "khula "---Preconditions---Both divorce and khula were most undesirable options and were allowed only when the spouses genuinely came to the conclusion that continuation, of their union was harmful, making them unable to perform their mutual obligations amicably enough to live within the bounds prescribed by Almighty Allah.
(e) Constitution of Pakistan---
----Art. 203-D---Federal Shariat Court---Shariat petition--- Granting relief in personam to a petitioner---In view of the jurisdiction in connection with shariat petition, conferred upon the Federal Shariat Court, the prayer for granting relief in personam could not be allowed---Illustration.
(f) Islamic jurisprudence---
----Marriage, termination of---"Khula" without recourse to court---Scope---Word "khula' literally meant "to put off"---Khula denoted laying down by the husband of rights and authority over his wife, at her instance, on acceptance of consideration---Khula signified a conditional situation on the part of wife, entered into for the purpose of dissolving the marital tie at her instance, in lieu of a compensation paid or agreed to be paid by her to the husband out of her property---In case of mutual agreement on such an arrangement, the wife did not need to go to court and ask for dissolution of her marriage as in such a situation the husband would release her from the marital bond and the wife would be free to marry any other person after the iddat period, as would be required in her case, if she was or was not pregnant.
A1-Qur'an Sura Al-Baqara Verse 229 ref.
(g) Constitution of Pakistan---
----Art. 203-D---West Pakistan Family Courts Act (XXXV of 1964), S.10(4)---Shariat petition---Dissolution of marriage--- "Khula "---Pre-trial proceedings---Judge/Qazi empowered to pass decree for khula at pre-trial stage without approval of husband and without recording evidence---Repugnancy to Injunctions of Islam---Plea of petitioners that a Qazi/Judge before whom prayer for dissolution of marriage on basis of khula was made was not authorized to pass such decree in favour of wife if the husband was unwilling; that S.10(4) of Family Courts Act, 1964 was against Injunctions of Islam as it bound the Family Court to pass a decree (for khula) in case reconciliation failed at pre-trial stage without recording of evidence in respect of liking and disliking on the basis of which compromise between husband and wife was refused---Validity---Where the husband did not agree to accept compensation by his wife for purposes of khula and refused to release her from his marital tie and also declined to divorce her, question was what should be the course of action for the wife; would it be justified to leave such a wife in darkness who could not live happily or perform her marital obligations; should she be pushed back to her husband to remain tongue tied, tight-lipped, depressed, dejected, having a miserable survival throughout her whole life; should she be kept, at the mercy of her in laws, vulnerable to indecent immoral life; was such a situation morally justified on any standard; would not such a situation assigned to her defeat the very object of marital peace and tranquility; who would be considered responsible if she could not bear the mental agony in such state of affairs and put an end to her life by setting herself on fire or adopted any other method for committing suicide; who would stop her or what would prevent her from administering poison to her husband if she found herself entangled in a "holy dead lock"---Islam did not intend to force a wife to live a miserable life, in a hateful unhappy union, forever---If wife was unhappy and reconciliation failed, she should be entitled to get relief as this is what justice demanded---Courts were there to resolve the disputes that arose between the parties, and they could decide all type of matters including, admittedly, dissolution of marriage on certain grounds---In such circumstances it was not understandable as to why the courts would not be authorized to decide a case of khula, if a husband did not at all agree to divorce his wife and all reconciliatory efforts failed--- No specific verse or authentic ahadith existed which provided a bar to the exercise of jurisdiction by a competent Qazi/judge to decree the case of khula agitated before him by a wife, after reconciliation failed (and husband refused to release her from marital tie by accepting compensation in lieu of khula)---Shariat petition was dismissed accordingly.
Al-Qur'an Verse 2:228; Huququz Zawjain by Syed Mawdudi, pp.58-80; Fiqhul Quran by Maulana Umar Ahmad Usmani Vol. III, pp.398-417 ref.
Al-Quran Verse 2:237; 2:228; 4:34 distinguished.
(h) Islamic jurisprudence---
----Marriage, termination of---"Khula" and "Mubarat"---Single irrevocable divorce---Re-marrying without any intermediary carriage/"halala"---"Khula" and "Mubarat" operated as a single, irrevocable divorce---Even thereafter both the spouses could contract fresh marriage with mutual consent, of course if they wanted to, without any intermediary marriage of the wife with another person, as was required in the case when a husband pronounced divorce for the third time; however, iddat shall to be incumbent on the wife if she wanted to contract marriage with someone else.
P L D 2014 Federal Shariat Court 43
Before Haziqul Khairi, C. J.,
Dr. Fida Muhammad Khan and Salahuddin Mirza, JJ
SALEEM AHMAD and others---Petitioners
Versus
GOVERNMENT OF PAKISTAN through Attorney General of Pakistan and 2 others---Respondents
Shariat Petitions Nos.3/L of 2005, 2/L of 2006, 1/K, 2/K, 3/K, 1/I of 2007, decided on 28th May, 2009.
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