P L D 2003 Peshawar 169

Before Malik Hamid Saeed and Shah Jehan Khan, JJ

FAZLI-E-SUBHAN---Petitioner

Versus

Mst. SABEREEN and 3 others---Respondents

Writ Petition No. 137 of 2003, heard on 11th March, 2003.

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 7 & 8---Talaq---Effect of enactment of Muslim Family Laws Ordinance, 1961---

Legislature had, to a great extent, trammelled and curtailed the arbitrary power of
husband to divorce his wife---Muslim Family Laws Ordinance, 1961 had abolished the
practice of disapproved form of 'Talaq' and mode prescribed in the Ordinance was that of
a 'Talaq-e-Ahsan' and by the Ordinance it had been made mandatory that the notice of
'Talaq' should be given in writing to the Chairman of Union Council---'Talaq' would be
effected only if efforts of reconciliation would fail---Law prevailing previous to the
enforcement of Muslim Family Laws Ordinance, 1961, had made it obligatory for the
couples divorced by any mode of 'Talaq' other than 'Talaq-e-Ahsan' not to re-marry each
other again, unless wife married another man who died or divorced her after actual
consummation and she married her first husband after period of 'Iddat'--Before re-
marriage parties had to prove that bar to their marriage was removed by intermediate
marriage, consummation and dissolution, otherwise their marriage was not considered
valid---Mode of 'Talaq' effected under provisions of Muslim Family Laws Ordinance,
1961 being almost that of 'Talaq-e-Ahsan', the couples could re-marry without any
intervening marriage except where they had been divorced thrice and the third divorce
had become effective and in that case they could not re-marry without an intervening
marriage---Plain reading of S.7 of Muslim Family Laws Ordinance, 1961 though had
implied that all kinds of 'Talaqs' had been made revocable without an intervening
marriage and could be that its repugnancy to such extent could validly be agitated on the
touchstone of Qur'anic behest and the traditions of Holy Prophet (peace be upon him), but
neither vires of said S.7 had been challenged nor matter raised in case pertained to all
kinds of 'Talaqs'---Matter, in the present case, pertained, to 'Talaq' obtained by wife
through Court decree in shape of Khula'.

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 7(6) & 8---Khula'---Meaning and scope---Principle of Khula' in the light of

dictates of Holy Qur'an and Sunnah, was to the effect that when married parties disagreed
and were apprehensive that they could not observe the bonds prescribed by Divine law,
woman could release herself from marital tie by giving up some property in return in
consideration of which husband was to give her Khula' and when they had done that,
'Talaqul Ba'ayen' would take place---Khula' was a repudiation with consent and at the,
instance of wife in which she would agree to give a consideration to husband for her
release from marital tie---In case of divorce through Khula' it was not obligatory on wife
to re-marry a third person before re-marrying with her first husband---Re-marriage with
same husband, of course, would be subject to performance of another Nikah---Provisions
of S.7(6) of Muslim Family Laws Ordinance, 1961, however, also allowed such re-union
without 'Halala'---No restraint existed, in circumstances, either in Muslim Family Laws
Ordinance, 1961 or in Injunctions of Qur'an and Sunnah not to allow prayer of husband
for re-union with his wife when she was ready to live again as wife within limits of God.
Muhammad Amin Khattak for Petitioner.

Lal Jan Khattak for Respondents.

Date of hearing: 11th March, 2003.

JUDGMENT

MALIK HAMID SAEED, J.---The matter of divorce between the petitioner Fazle
Subhan and the respondent/wife Mst. Sabreen took an advantage step in the earlier Writ
Petition No.608 of 2002, when in spite of obtaining a decree for dissolution of marriage
from the trial Court, the respondent/wife again came to an agreement of re-union with her
husband by making an oral statement at the bar in this regard before this Court on 21-1-
2003. The respondent/lady also desired not to go with their parents. This Court therefore
ordered that she should be kept in ' Darul-Aman' and the learned counsel for the
petitioner was asked to prepare the case keeping in view the Muhammadan Law/Sharia.
The learned counsel for the petitioner on the next date of hearing withdrew the said writ
petition and has now filed the instant writ petition on the ground that keeping in view the
willingness of the respondent/lady, the parties may be allowed to live as husband and
wife within the limits of God.

2. The father of Mst. Sabreen, in the peculiar circumstances has, however, raised the
question of inability of the spouses to again re-unite the marriage tie without first
observing the procedure provided by Islam in the shape of ' Halala'.

3. We have heard the learned counsel for the parties and have also gone through the
relevant provisions of law and the Injunctions of Islam on the point.

4. Before discussing the matter in the light of Muhammadan Law/Sharia, we deem it

proper to first refer to the relevant provisions of the Muslim Family Laws Ordinance,
1961 (hereinafter to be referred as the "Ordinance"). Through enactment of the Ordinance
ibid, the Legislature has, to a great extent, trammelled and curtailed the arbitrary power
of the husband to divorce his wife. It has abolished the practice of disapproved form of
'Talaq' and the mode prescribed in the Ordinance is that of a ' Talaq-e-Ahsan'. Moreover,
it has been made mandatory that the notice of 'Talaq' should be given in writing to the
Chairman of Union Council. The 'Talaq' shall be effected only if the efforts of
reconciliation finally fails. Along that, under subsection (6) of section 7 of the Ordinance
it is also provided that:--

"Nothing shall debar a wife whose marriage has been terminated by Talaq'
effective under this section from re-marrying the same husband, without an
intervening marriage with a third person, unless such termination is for the 3rd
time so effective."

The law previous to the enforcement of the Muslim Family Laws Ordinance was making
it obligatory for couples divorced by any mode of Talaq' other than ' Talaq-i-Ahsan' not
to re-marry each other again, unless the wife marries another man by a valid contract, and
the latter dies or divorces her after actual consummation and she marries her first husband
after the period of ' Iddat'. Before re-marriage the parties had to prove that the bar to their
marriage was removed by an intermediate marriage, consummation and dissolution,
otherwise their marriage was not considered valid.

5. As stated above, the mode of ' Talaq' effected under the provisions of the Ordinance is
almost that of 'Talaq-e-Ahsan' so the couples could remarry without any intervening
marriage except where they have been divorced thrice and the third divorce has become
effective. In that case they cannot re-marry without an intervening marriage. The plain
reading of this section though implies that all kinds of ' Talaqs' have been made revocable
without an intervening marriage and may be that its repugnancy to such extent could
validly be agitated on the touchstone of the Qur'anic behest and the traditions of the Holy
Prophet (peace be upon him), yet neither the vires of section 7 have been challenged nor
the matter raised before us pertains to all kinds of ' Talaqs'. In this writ petition, we are
only concerned with a "Talaq" obtained by the wife through Court decree in the shape of '
Khula'.

6. The principle of 'Khula' as laid down in various eminent commentaries on Muslim Law
in the light of sayings of the Holy Qur'an and Sunnah is to the effect that when married
parties disagree and are apprehensive that they cannot observe the bounds prescribed by
the Divine law the woman can release herself from the tie by giving up some property in
return in consideration of which the husband is to give her a ' Khula' and when they have
done this, a 'Talaq-ul-Ba'ayen' takes place. Hence Khula' is a repudiation with consent
and at the instance of the wife in which she agrees to give a consideration to the husband
for her release from the marital tie. The decree granted to the respondent/wife in this case
is also of the kind of ' Khula' because she was found unable by the trial Court to properly
establish her assertion for the dissolution of marriage, but keeping in view the abhorrence
shown by the wife towards the husband in her statement as well as her pleadings and the
extent of unpleasantness of matrimonial relation between the parties, which even
culminated into criminal proceedings, it was held by the trial Court that the relation
between the parties has reached to the extent where the re-union between the two is
impossible and only separation will be in the interest of both the parties.

7. Maulana Muhammad Ashraf Ali in his book known as "Bahishti Zaiwar", at page 20
(Fourth Part) has stated on the point as under:--
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Two Fatawas; one by Mufti Saifullah Haqqani of Jamia Darul-Uloom Haqqania, Akora
Khattak, and the other by Mufti Muhammad Naeem, District Khateeb of Kohat are also
on the file, wherein it is stated that:--
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In view of the above, we are of the considered view that in case of divorce through
'Khula' it is not obligatory on the wife to re-marry a third person before entering into re-
marriage tie with her first husband and same is the case here. The re-marriage with same
husband of course would be subject to performance of another Nikah. Section 7(6) of the
Muslim Family Laws Ordinance also allows such re-union without 'Halala', hence we see
no restraint either in the Muslim Family Laws Ordinance or in the Injunctions of Qur'an
and Sunnah, not to allow the prayer of the husband for re-union with his wife when she is
ready to live again as wife of the petitioner within the limits of God.

8. The writ petition in hand for the aforesaid reasons is allowed. Presently, Mst. Sabreen
is in ' Darul-Aman' at Peshawar under the orders of this Court, hence the Incharge of
'Darul-Aman, Peshawar is directed arrange for performing the Nikah of the petitioner
with the respondent. After Nikah the respondent Sabreen should be allowed to go with
the petitioner and needless to say that the minor children shall also accompany their
parents. No order as to costs.

H.B.T./823/P Petition allowed.