Consent of Husband in Khula Case

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Consent of Husband in Khula Case

Unread postby Admin » Thu Jul 12, 2018 4:04 am

West Pakistan Family Courts Act (XXXV of 1964) Section. 5, Sched. & S.10---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2---Dissolution of marriage on ground of Khula'---Scope---Consent of husband for such dissolution would not be necessary---Judge, in case of husband's dis-agreement to dissolve marriage, could determine question as to whether spouses, if they continued living together, could observe limits of God or not---Duty of Judge to make genuine attempt for reconciliation between spouses---Judge in case of failure of reconciliation efforts could pass forthwith decree for dissolution of marriage--- Where Judge while passing such decree, observed that wife was not willing to live with husband without any fault of his, then Judge would have no option but to restore to husband dower (Haqe-Mehr) received by wife at time of marriage---Wife seeking divorce for having developed extreme hatred and disliking for her husband would have to restore the consideration of marriage (dower) to husband---Where in view of Judge husband by his arrogant, cruel and obnoxious nature or behavior compelled wife to seek "Khula", then she would be entitled to all due benefits along with dissolution of marriage.

The right of the wife to claim dissolution of her marriage is recognized by the Holy Quran and
Hadees and the technical term for the wife's right to divorce by returning her dower is called
"Khula". "Khula" is an Arabic term, which literally means "to take out" and "remove". The
definition of "Khula" as explained by the famous Hanifa Mujtahid Ibn-e-Human is as follows:

"To remove the union of marriage in exchange of financial settlement within the words of

"Khula" is release from matrimonial bond and can be exercised by the wife, if the
circumstances divulge that it is impossible for the parties to live within the limits prescribed by
Allah and the compelling of wife to live with her husband, will give birth to a hateful union, then
the Court is bound to grant the right of "Khula" to a woman where she has expressly claimed or
has omitted to claim in her pleadings or in case the other ground for seeking dissolution of
marriage could not be proved.

If the dissolution of marriage is claimed on any ground recognized under Dissolution of
Marriages Act, 1939, then it is the duty of the wife and the burden lies on her shoulders to prove
the allegation levelled for dissolution of marriage. If she successfully discharges her burden and
proves the allegations, then the Court shall grant her decree for dissolution of marriage along
with other benefits. But if she fails to prove the allegation, then the mere fact that the wife could
not establish her allegation qua ground taken for dissolution of marriage would not disentitle her
for dissolution of marriage on ground of "Khula". If the wife fails to substantiate her case on the
grounds claimed in the plaint for dissolution of her marriage then the court is under legal
obligation to dissolve the marriage but on the basis of "Khula", particularly when the wife is not
ready to live with her husband at any cost.

Mst. Bilqis Fatima v. Najmul Ikram Qureshi PLD 1959 Lah. 566 and Shahid Javed v.
Sabba Jabeen and others 1991 CLC 805 rel.

Under Muslim Law as well as the law of Pakistan, the wife is entitled to terminate the
contract of her marriage one sidedly like "Talaq", but for the same she shall remit the dower
amount, if not received, or pay it back to the husband, if so received. Where there is no dispute
existing between the parties regarding dower, then in terms of proviso to section 10(4) of the
West Pakistan Family Courts Act, 1964 a decree for dissolution of marriage, shall be granted to
the wife immediately on the failure of reconciliation in pre-trial proceedings. However, if a
dispute arises and the wife claims dissolution of marriage, on recognized grounds for dissolution
of marriage, then court shall proceed with the matter and record evidence of the parties to
ascertain her entitlement for dower and other benefits. If the courts, after pro and contra evidence
arrives at a conclusion that the husband has compelled the wife by his arrogant, cruel and
obnoxious nature or behaviour, then she is to be held entitled for all the due benefits along with
dissolution of marriage. On the other hand, if the court finds that the wife is adamant not to
reside with the husband and the conscious of the court is satisfied that there is no fault of the
husband, but the wife is claiming dissolution for her own personal reasons such as abhorrence or
disliking of her husband, then the wife shall be directed to restore the consideration of marriage
to the husband, for the reason that if she had developed extreme hatred and disliking for her
husband, then she should also not like the benefits in the shape of dower from the husband.

2009 MLD 419; PLD 2009 Pesh. 92 and 2000 CLC 1337 ref.

Verse No.229 of Sura Baqra; Mst. Bilqis Fatima v. Najmul Ikram Qureshi PLD 1959
Lah. 566; Shahid Javed v. Sabba Jabeen and others 1991 CLC 805 and Sadiq Rasool Khan v.
The Additional District Judge, Lakki Marwat 1991 MLD 1732 rel.
PLD 2013 Peshawar 12
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