The question of repayment of Haq Mehr does however arise in case wife seeks dissolution of marriage on no-fault basis i.e. on the basis of her own considered judgment that she can no longer live with her husband within the bond of marriage. No-fault dissolution of marriage does not contradict Islamic jurisprudence. A woman cannot be forced to continue to suffer within the bond of marriage that she does not wish to remain tied up in and she need not prove and justify the cause of her decision before a court to seek dissolution of marriage. Dissolution of marriage is not a welcome outcome and thus there is emphasis on making efforts to facilitate reconciliation between spouses to ensure that the union preserves. But where it becomes obvious that the wife is unwilling to stay in the bond of marriage during pretrial reconciliation proceedings, the Family Court is under an obligation to pronounce dissolution of marriage forthwith. The question whether dissolution of marriage was sought due to the husband’s fault or not and whether return of Haq Mehr is due from the wife are additional questions for which issues can be framed and evidence recorded. But the question of determination of liabilities while contingent on whether the wife is seeking dissolution due to husband’s fault, is not a precondition for dissolution of marriage. The question of such determination arises post-dissolution and thus dissolution of marriage is not contingent on repayment of Haq Mehr by the wife. There is no concept of personal servitude within the concept of marriage in Islam and none can be imported in section 10(4) of the Family Courts Act. A woman cannot be forced to live with her husband when she wants the marriage dissolved merely because the matter of calculation or settlement of civil liabilities is outstanding between them.
The aforementioned scheme of the law is also evident from section 14(2)(a) of the Family Courts Act which prohibits filing an appeal against a decree for dissolution of marriage except when such dissolution is on the basis of finding of the court that a husband has indulged in cruelty and the marriage is liable to be dissolved pursuant to section 2(viii)(d) of the Dissolution of Muslim Marriages Act, 1939.
What emerges from the law laid down by superior courts is that the question of determination of civil liabilities between spouses upon dissolution of marriage was appealable under section 14 of the Family Courts Act. In the event that a decree has been passed by holding that the husband was liable for cruelty and not entitled to the return of Haq Mehr, the husband can appeal the said part of the judgment which held him for liable for cruelty and disentitled him from return of Haq Mehr. He can however not seek to have the decree of dissolution of marriage itself set-aside. In other words, the only appealable part under section 14(2) is a finding of the Family Court which determines his civil liabilities for lack of grant of Haq Mehr upon dissolution of marriage. Likewise, a wife who seeks dissolution of marriage on the basis of cruelty and the dissolution is not granted on such basis, can appeal such order in the event that she is aggrieved of the determination by the Family Court for civil liability to repay Haq Mehr she received from the husband. In such case as well it is the only part of the judgment determining the civil liabilities of the parties that is appealable and not the decree of dissolution of marriage as it cannot be countenanced that marriage having been dissolved by a decree passed by the Family Court can subsequently be resurrected by the appellate court on the basis that a dispute continues with regard to their civil liabilities as determined by the Family Court in the aftermath of the dissolution of marriage.
WRIT PETITION NO. 4332 OF 2021
Shaza Tehseen Vs Tehseen Butt, etc.
21-02-2022
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