Suit for dissolution of marriage --- Grounds for decree for dissolution of marriage --- Divorce on the basis of khula -

 PLD 2023 ISLAMABAD 135

Suit for dissolution of marriage --- Grounds for decree for dissolution of marriage --- Divorce on the basis of khula --- Scope --- Where the wife had stated in her plaint that she had faced agony at the hands of the husband and that it was not possible for her to live with him while abiding by the limits of Allah ; the parties had been living separately for years ; the pre trial reconciliation proceedings had not succeeded in the Family Judge's own opinion , High Court observed that such factors were sufficient grounds for the grant of a decree for dissolution of marriage by way of khula in order to avoid a hateful union even if the grounds alleged by the wife for dissolution of marriage were not proved through evidence in the opinion of the Family Court as no woman could be forced to live with a man without her consent or liking .

Dissolution of Muslim Marriages Act ( VIII of 1939 ) , S. 2 --- Suit for dissolution of marriage --- Grounds for decree for dissolution of marriage --- Divorce on the basis of khula --- Scope --- Decree for khula may be granted even where no ground for dissolution of marriage as alleged by the wife exists and the wife has omitted to demand khula , if the Court is of the opinion that in the event that decree for dissolution of marriage is not granted , it will give birth to a hateful union and the spouses may not be able to live with each other within the limits prescribed by Allah .

S. 5 , Sched .-- Dissolution of Muslim Marriages Act ( VIII of 1939 ) , S. 2 ( ii ) --- Suit for dissolution of marriage --- Grounds for decree for dissolution of marriage --- Scope --- Failure to maintain the wife even if for less than the statutory period which entitles a wife to a decree for dissolution of marriage under S. 2 ( ii ) of the Dissolution of Muslim Marriages Act , 1939 , would at the very least show that the wife has approached the Court for dissolution of marriage on account of fault of the husband , in which case , the wife is entitled to recovery of outstanding dower .

S . 5 , Sched .--- Suit for dissolution of marriage --- Divorce on the basis of khula --- Scope --- Contention that in case of khula , the wife ipso facto should return the benefits is not correct --- If a wife seeks khula without pointing any fault of the husband and the Court finds it proper to grant khula then the wife should be ordered to return all the benefits received by her and also forego such rights under which she can claim any benefit .

S . 5 & Sched .--- Suit for dissolution of marriage --- Divorce on the basis of khula --- Scope --- Husband can refuse to give ' Talaq ' but at the same time it would create an environment causing the wife to seek khula , which would entitle him to the benefit of retaining deferred dower and / or getting back prompt dower property / amount --- Thus , where the Court through legal . cogent and convincing evidence comes to the conclusion that the husband has compelled the wife to ask for dissolution of marriage on the ground of khula then the Court shall have the power to refuse the return of the prompt dowered property amount to husband or to release him from the liability of payment of deferred dower . ----

S . 5 , Sched .--- Suit for dissolution of marriage --- Divorce the basis of khula --- Scope -- Deferred dower does not mean that it cannot be considered while granting khula --- It is obligatory on Courts granting khula to take into consideration dower regardless of whether it is prompt or deferred .

Divorce on he basis of khula --- Scope --- Khula is a right given to a woman as the right to divorce is vested in a man with the difference that khula can be obtained only through a decree of Court and on payment of such consideration as may be fixed by Court .

S. 5 , Sched .-- Suit for dissolution of marriage --- Divorce on the basis of khula --- Scope --- Woman can release herself from consideration of which the husband has to give her khula --- the tie of marriage by giving up some property in return in Khula is repudiation with the consent and at the instance of the wife in which she agrees to give consideration to the husband for her release from the marital tie --- However , the Court cannot on its own deprive a lady of her dower and cannot order her to relinquish the same because the dower is the right of the woman given by Shariah .

Appeal --- Scope --- Decree of dissolution of marriage by way of Ss . 5 , Sched . & 14 --- Suit for dissolution of marriage ... khula is neither revocable nor appealable --- Having said that there is no cavil to the contention that a decree of khula constitutes one divorce and as such the husband and wife are at liberty to remarry each other by performing Nikah if they wish not require any to reunite --- However , the parties do pronouncement from the Court for the said purpose nor can the Court direct the parties to do so .