Grant of Khula and ground of dissolution of marriage due to taking additional wife in contravention of the provisions of The Dissolution of Muslim Marriages Act, 1939. ~ Family Judgment & Case Laws

The terms of a contract of marriage between a man and a woman are contained in the Nikah Nama. The terms and conditions are meant to secure the rights and intentions of both the wife and the husband. The Nikah is a social contract between parties who are competent to enter into a valid marriage contract. It is settled law that a presumption of truth is attached to the Nikah Nama and it enjoys the status of a public document. A strong presumption of truth exists regarding entries recorded in the Nikah Nama. The titles of columns 13 to 16 relate to 'dower'. Column 17 of the prescribed form is titled as 'special conditions if any'. The prescribed form nor the headings of the entries are conclusive for the purpose of ascertaining the intentions of the two parties to the marriage contract. This Court has held in the Haseen Ullah’s case that the Nikah Nama is the deed of marriage contract entered into between the parties and its clauses/columns/contents are to be construed and interpreted in the light of the intention of the parties. The headings are not sufficient to determine the intention of the parties. It is also a settled principle of interpreting a contract that a court cannot imply something that is inconsistent with the express terms and a stipulation not expressed in the written contract can also not be applied merely because it appears to be reasonable to the court. We will now examine what the parties had intended regarding the dower which was settled between them and duly recorded in the relevant entries of the Nikah Nama. It is noted that 'dower' is obligatory because it is an essential requirement of a valid marriage contract. The validity of marriage remains effective even if the dower has not been expressly mentioned in the marriage contract because, in such a case, a reasonable dower, 'Mehr-ul-Misal' is presumed. Dower may be prompt or deferred. In case the parties have not specified the nature of the payment of dower then in such an eventuality it is presumed to be prompt as has been provided under section 10 of the Ordinance of 1961. It can be in the form of cash or property or both. In the case before us, the parties had settled an amount of Rs.500,000/- to be paid as cash 'on demand' and this was recorded in column 13 of the Nikah Nama. In column 14 the nature of dower i.e whether prompt or deferred was not specified Haseen Ullah’s case1 that the Nikah Nama is the deed of marriage contract entered into between the parties and its clauses/columns/contents are to be construed and interpreted in the light of the intention of the parties. The headings are not sufficient to determine the intention of the parties. It is also a settled principle of interpreting a contract that a court cannot imply something that is inconsistent with the express terms and a stipulation not expressed in the written contract can also not be applied merely because it appears to be reasonable to the court.2 We will now examine what the parties had intended regarding the dower which was settled between them and duly recorded in the relevant entries of the Nikah Nama. It is noted that 'dower' is obligatory because it is an essential requirement of a valid marriage contract. The validity of marriage remains effective even if the dower has not been expressly mentioned in the marriage contract because, in such a case, a reasonable dower, 'Mehr-ul-Misal' is presumed. Dower may be prompt or deferred. In case the parties have not specified the nature of the payment of dower then in such an eventuality it is presumed to be prompt as has been provided under section 10 of the Ordinance of 1961. It can be in the form of cash or property or both. In the case before us, the parties had settled an amount of Rs.500,000/- to be paid as cash 'on demand' and this was recorded in column 13 of the Nikah Nama. In column 14 the nature of dower i.e whether prompt or deferred was not specified There are various modes for lawfully dissolving the contract of marriage between a husband and wife. The primary mode is pronouncement of divorce by the husband or in case the right has been delegated to the wife then exercise of such right by her. The Act of 1939 was enacted to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women who are married under the Muslim law. Section 2 sets out the grounds for a decree for the dissolution of a marriage. The statute was amended and a new ground was inserted i.e. clause (iia) in the Act of 1939 through Muslim Family Laws Ordinance of 1961 (‘Ordinance VIII’). These amendments were made to give effect to the recommendations of the Commission on Marriages and Family Laws. Later section 13 of the Ordinance VIII was omitted through section 3 read with item no.18 of the second schedule of the Federal Laws (Revision and Declaration) Ordinance, 1981 (‘Ordinance of 1981’). It is noted that the insertion of clause (iia) in section 2 of the Act of 1939 had taken effect and was enforced. It is an admitted position that the Act of 1939 was not amended nor was clause (iia) of section 2 omitted or repealed there from. The effect of omission of section 13 of Ordinance VIII through the Ordinance of 1981 did not affect the insertion of clause (iia) in section 2 of the Act of 1939. Moreover, it is obvious from the language of section 13 of Ordinance VIII that the insertion made in the Act of 1939 was not intended to be of transitory nature nor that it shall take effect for a limited period. There is nothing in the language to construe that it was intended that the insertion would lapse on a specific date or on the happening of some contingency. The ground of dissolution of marriage inserted in section 2 of the Act of 1939 as clause (iia), i.e taking an additional wife in contravention of the provisions of the Ordinance of 1961, hence continued to be validly enforced and subsisting. This Court in the case of Abdul Majid has observed that the purpose of such omission or repeal was to strike out unnecessary enactments and cannot be construed as having brought any change in the relevant statute which was amended or in which provisions were inserted. The aim of the repeal or omission of those sections through which some other statute was amended was termed by this Court as 'legislative spring cleaning'. Section 7 of the Ordinance of 1981 expressly saved the effect of the repealed laws. It expressly provides that the repeal shall not affect the continuance of any such amendment unless a different intent was expressly stated in the law by which the amendment was made. Section 6-A of the General Clauses Act 1897 (‘Act of 1897’) provides that where any Central Act or Regulation repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal. As already noted, it is obvious from the clear language used in section 13 of Ordinance VIII that a different intention cannot be construed. The learned counsel for the defendant has drawn our attention to the judgment of the Peshawar High Court in the case of Rashid Ali4 in support of his contention that clause (iia) inserted in section 2 of the Act of 1939 stood repealed. With great respect, the view taken by the High Court appears to have been formed without taking into consideration the above factors, particularly section 7 of the Ordinance of 1981. The opinion of the High Court is per incuriam.

We, therefore, hold that the repeal of section 13 of Ordinance VIII through the Ordinance of 1981 did not affect the validity and enforcement of the insertion made in the Act of 1939 and, therefore, clause (iia) of section 2 of the Act of 1939 continues to be one of the valid, effective and subsisting grounds for dissolution of marriage. Clause (iia) of section 2 of the Act of 1939 enables a woman married under the Muslim Law to obtain a decree for dissolution of marriage if the husband has taken an additional wife in contravention of the provisions of the Ordinance 1961. Section 6 of the Ordinance of 1961 sets out the requirements and procedure which are to be complied with by a husband who intends to take an additional wife. It provides that a husband, during the subsistence of an existing marriage, shall not contract another marriage except with the previous permission in writing of the Arbitration Council. In conformity with these provisions a husband is required to file an application for permission under sub-section 1 of Section 6 of the Ordinance of 1961 to the Chairman of the Arbitration Council, stating therein the reasons for the proposed marriage and whether the consent of the existing wife or wives has been obtained thereto. On receiving the application, the Chairman asks the applicant and his existing wife or wives to nominate their respective representative. After the Arbitration Council is satisfied that the marriage was necessary and just, it may grant permission subject to such conditions, if any, as it may deem fit to impose. In deciding the application the Arbitration Council is required to record its reasons for the decision. Any party may prefer the remedy of revision before the Collector concerned. The consequences for taking an additional wife in contravention of the aforementioned provisions have been expressly described under sub-section 5 of section 6 ibid. In case of contravention the husband becomes immediately liable to pay the entire amount of dower, whether prompt or deferred, due to the existing wife or wives and, secondly, on conviction may be sentenced to simple imprisonment which may extend to one year, or a fine or both. In order to invoke the ground under clause (iia) of section 2 of the Act of 1939 all that the wife is required to show is that the husband had taken the additional wife in contravention of the Ordinance of 1961 as set out in section 6 ibid. In the case before us, the defendant had taken an additional wife while the appeals against the decrees passed by the trial court were pending. An additional ground was taken by the plaintiff and it is obvious from the judgment of the appellate court that such a ground was entertained. It is also apparent from the judgment that the defendant had submitted a reply. It stood established that the provisions of the Ordinance of 1961 had been contravened since neither any application was filed nor the permission of the Arbitration Council was sought in accordance with the requirements set out under section 6 ibid. However, instead of adjudicating this ground, the appellate court had ordered the dissolution of the marriage on the basis of Khula. This form of dissolution was accepted by the defendant as it was not challenged by him before the High Court. The learned counsel for the defendant has argued that the matter should be remanded to the appellate court because it would require recording of evidence. He has also advanced arguments in support of the dissolution of marriage by the appellate court on the basis of Khula. Before we examine the argument regarding remanding the case to the appellate court, it would be appropriate to advert to the question of whether the appellate court was justified in ordering dissolution of the marriage on the basis of Khula.

Khula is one of the modes for dissolving a marriage. It can either be on the basis of mutual settlement/arrangement between the spouses or it can be ordered by a court if the requisite conditions are met. This court in the case of Khurshid Bibi5 has held that Khula is a right and privilege of the wife to seek dissolution of marriage. It is a right which is exclusively conferred on the wife. Khula through judicial order is thus dissolution of marriage by the court/Qazi on the demand of the wife. It authorises the court to dissolve the marriage in an appropriate case against the will or consent of the husband. However, a court on its own cannot order dissolution of the marriage on the basis of Khula when it has not been sought by the wife either expressly or impliedly. It has further been observed that the question of Khula was a subject matter of a specific issue between the parties in the case before this Court. It has been noted in the judgment that the wife in her plaint had consented to the dissolution of marriage on the basis of Khula. The learned counsel for the defendant has placed reliance on Muhammad Arif’s case6 in support of his contention that a court is competent to order dissolution of marriage on the basis of Khula even though it may not have been sought by or consented to by the wife. We have carefully perused the judgement rendered by a Bench consisting of two hon’ble judges of this Court but, with respect, we have noted that the Bench had not considered the law enunciated by this Court in Khurshid Bibi's case (supra) which was rendered by a larger bench consisting of five hon’ble judges. The appellate court, therefore, fell in error by granting a decree for the dissolution of marriage on the basis of Khula when it was not sought by the plaintiff nor had she given express or implied consent thereto as was the case in Khurshid Bibi's case supra. The next question is whether the High Court had validly modified the decrees by ordering the dissolution of the marriage on the ground of cruelty.

The Act of 1939 has set out the grounds which entitles a wife married under the Muslim Law to obtain a decree for dissolution of marriage. Clause (a) provides that a marriage could be dissolved if the husband treats the wife with cruelty i.e. habitually assaults her or makes her life miserable even if such conduct does not amount to physical ill-treatment. Cruelty may be mental or physical. This court, in the case of Mst. Tayyeba Ambareen,7 has dealt with various forms of conduct or behaviour that would entitle a wife to seek a decree for dissolution of marriage on the ground of cruelty. In this case the trial court had framed a specific issue whether the plaintiff was mentally or physically tortured by the defendant. The former could not discharge the onus placed upon her and, therefore, it was decided in the negative. The High Court, while exercising its jurisdiction vested under Article 199 of the Constitution, could not have decided questions involving determination of facts requiring recording of evidence. No further evidence was recorded after the trial was concluded by the trial court. The High Court has also not recorded any reasons in support of its conclusion to order dissolution of marriage on the ground of cruelty. The High Court, therefore, fell in error by ordering dissolution of marriage on the ground of cruelty.