Principles of surrender of dower in cases of Khula enunciated in the light of Imran Anwar Khan case (PLD 2022 Federal Shariat Court 25.

The Judgment in the Imran Anwar Khan case was rendered in this context. It struck down the prescribed upper ceiling with respect to surrender of dower encapsulated in Sub-sections (5) & (6) of Section 10 of the Act being repugnant to Islam and as such, declared the same to be ineffective from 01.05.2022. The conclusion was drawn in quest of proposition as to whether at the time of dissolution of marriage in the case of Khula, the Holy Quran or Sunnah of the last Messenger of Allah (Peace Be Upon Him) require a Muslim woman to surrender or return the wealth, gift or dower to the husband received by her during the subsistence of marriage in any specific proportion or ceiling and how the Court should decide the quantum of dower while granting a decree of Khula. The said query was minutely and extensively deliberated by the Honorable Federal Shariat Court in the light of Islamic injunctions. It is, therefore, pertinent to examine and assess its impact on the pending cases involving the cases of Khula.

The following conclusions are extracted from the reading of the Imran Anwar Khan case:

(i) There is no prescribed specific ceiling in Islam regarding payment of compensation for seeking Khula in terms of return or surrender of dower in cash or kind just as there is no prescribed upper ceiling for fixation of dower; 
(ii) It is an established principle of Sharia that payment of dower and undertakings of Nikah become due on consummation of marriage and if not paid earlier are payable at the time of death, divorce or dissolution of marriage; 
(iii) Dower is wholly payable at the time of dissolution of marriage except where in a case of Khula, the Court orders return or surrender of whole or part of dower; 
(iv) As a general rule, if a husband pronounces divorce to his wife himself, he is not entitled to seek return or surrender of dower, gifts or any other benefit given by him to his wife during the subsistence of marriage; 
(v) More specifically, if a husband divorces his wife on his own accord without any fault on the part of wife, the husband does not have any right to demand return or surrender of dower or gift; 
(vi) A wife is entitled to seek Khula on any ground under Section 2 of the Act of 1939 by filing a suit in the Court of competent jurisdiction; 
(vii) If it is proved that there was no fault of the wife and she was compelled to seek Khula, the Court should not order return or surrender of any amount of dower in cash or kind;  
(viii) If it is proved that there was no fault of the husband and the wife sought Khula solely and merely on the basis of her personal dislike for her husband, the Court should order return or surrender of entire amount of dower in cash or kind;  
(ix) If it is proved that the husband and the wife are proportionally at fault for dissolution of marriage, the Court may order proportionate return or surrender of dower in cash or kind; 
(x) The order of return or surrender of dower in cash or kind shall not exceed the dower fixed in the Nikahnama;  
(xi) 9 W. P. No. 12505 / 2020  The Court is empowered to determine the quantum of return or surrender of dower in cash or kind, keeping in view the facts and circumstances of the case on the touchstone of fault of each spouse triggering dissolution of marriage; and 
(xii) The quantum of return or surrender of dower shall be decided in the light of aforesaid principles without resort to statutory upper ceiling stipulated in Section 10 (5) & (6) of the Act having been struck down as repugnant to injunctions of Islam after the cutoff date declared in the Imran Anwar Khan case.  