W.P.No.1982 of 2011
Major Qamar Zaman Qadir
19.10.2012
Judge Family Court,
Jhelum, etc.
Ch. Zahid Mehmood, Advocate for the petitioner.
Mrs. Nadia Yasmin, respondent No.2, in person.
The petitioner has filed this petition under
Article 199 of the Constitution of Islamic Republic of
Pakistan, 1973 for setting-aside the judgment dated
04.01.2011, passed by learned Judge Family Court,
Jhelum, whereby marriage between the parties was
dissolved on the basis of „khula‟ subject to the
condition that respondent No.2 shall forego the
deferred dower amount.
2.
Succinctly, the facts necessary for the disposal
of this petition, are that marriage between the
petitioner and respondent No.2 was solemnized on
26.10.2009. The spouses lived happily for quite some
time but thereafter, their relation became strained and
respondent No.2 went to the house of her parents in
Germany. On 07.10.2011, she filed a suit through her
special attorney namely Murid Hussain Dar against the
petitioner for dissolution of marriage on the basis of
„khula‟ in the court of learned Judge Family Court,
Jhelum. The petitioner appeared there in person on
23.12.2010 and got recorded his statement that he
would have no objection if suit of respondent No.2
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was decreed. In this view of the matter, the learned
Judge Family Court severed the parties from nuptial tie
and passed decree for dissolution of marriage on the
basis of „khula‟. Subsequently, on 27.06.2011, the
petitioner filed an application under Section 12(2)
CPC for setting-aside the aforesaid decree of
dissolution of marriage contending that at the time of
filing the suit, power of attorney of respondent No.2
was not attached with the plaint; that Murid Hussain
Dar, purported to be special attorney of respondent
No.2 in the suit, was not her duly authorized attorney
and that he was under sudden shock at the time of
giving consent for passing decree of dissolution of
marriage. The learned Judge Family Court, however,
dismissed the application of the petitioner on the
ground that the decree was passed with his free
consent, therefore, he was not entitled to file the
application. Hence, this writ petition.
3.
Learned counsel for the petitioner contends that
the aforesaid decree of dissolution of marriage is
illegal, malafide, collusive and has no binding effect as
it was obtained through misrepresentation and fraud;
that respondent No.2 did not appoint her special
attorney in the suit with her free consent; that
respondent No.2 did not appear in person and no pretrial reconciliation proceedings took place between the
parties in the learned Family Court. He further
W.P.No.1982 of 2011
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contends that in fact parents of respondent No.2, who
belonged to Qadiyani Sect, wanted that their daughter
should revert back to their sect and on her refusal they
managed to get her divorced through court by playing
fraud and misrepresentation.
4.
Mst. Nadia Yasmin, respondent No.2, is present
in court in person and categorically states that „khula‟
was not sought by her with her free will and volition,
rather it was procured by her father through
appointment of special attorney on her behalf under
duress and coercion. She claims to be wedded wife of
the petitioner and is willing to live with him.
5.
Arguments heard. Record perused.
6.
Notwithstanding statement of the wife made in
this Court in unequivocal terms that she did not seek
„khula‟ with her free consent, rather it was obtained on
her behalf through fraud and misrepresentation
coupled with the fact that neither she was summoned
in person by learned Judge Family Court nor pre-trial
reconciliation proceedings took place, the pivotal
question arises what would be the effect of the decree
of dissolution of marriage and whether the parties can
rejoin as husband and wife after pronouncement of
„khula‟ by the court.
7.
„Khula‟ is repudiation with consent at the
instance of the wife in which she agrees to give a
consideration to the husband for her release from
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marital bond and it has the effect of a „talaq bayen‟. It
has already been settled by the court in a number of
cases that pronouncement of „khula‟ by the court
would amount to a single divorce
and petitioner
would be at liberty to re-marry the respondent after
solemnization of „nikah‟ without intervention of third
person. In this respect, reliance is placed on the cases
reported as Mst. Naila Perveen and another v. The
State and 2 others (PLD 2011 Lahore
37),
Muhammad Ayyub Khan v. Mst. Shehla Rasheed
and another (PLD 2010 Kar.131), Gulzar Hussain v.
Mst. Mariyam Naz (2000 MLD 447 Karachi), Attiq
Ahmed Khan v. Noorul Sabah and another (2011
CLC Quetta) and Abdul Rehman v. Mst. Nagmali
(2003 CLC 1332). A reference can also be made to the
book of Hedaya or Guide by Charles Hamilton 1975,
Edition at Page 112 of Chapter VIII, which reads as
under:
“Which occasions a single irreversible
divorce:-And where the compensation is thus
offered and accepted, single divorce
irreversible takes place, in virtue of Khula.”
At Page 107 it provides that:
“In a case of irreversible divorce short of three
divorces, the husband is at liberty to marry his
wife again, either during her Idit or after its
completion, as the legality of the subject still
continues, since the utter extinction of such
legality depends upon a third divorce, and
accordingly until a third divorce takes place, the
legality of the subject continues.”
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Section 7(6) of the Muslim Family Laws Ordinance,
1961 also does not debar the wife whose marriage has
been terminated by divorce under Section 7 ibid from
re-marrying the same husband
without intervening
marriage with a third person.
8.
In view of the above, I am of the considered
opinion that „khula‟ has the effect of one divorce
(talaq Biyen) and the petitioner and respondent No.2
can rejoin as husband and wife after solemnization of
fresh „nikah‟ without intervening marriage i.e.
„Hilala‟. Resultantly, the impugned judgment &
decree is set-aside and the writ petition is accepted.
(MUHAMMAD FARRUKH IRFAN KHAN)
JUDGE
Mãjîd
Announced in open Court on ______________.
JUDGE