P L D 2009 Peshawar 92


Before Dost Muhammad Khan, Said Maroof Khan and Syed Mussadiq Hussain Gillani, JJ


Dr. FAKHR-UD-DIN—Petitioner




Mst. KAUSAR TAKREEM and another—Respondents


W.P. No.1797 of 2007, decided on 21st May, 2009.

Amin-ur-Rehman for Petitioner.


Riaz Ahmad Khan for Respondents.


Date of hearing: 23rd February, 2009.





DOST MUHAMMAD KHAN, J.—The Full Bench has been constituted to resolve the controversy arising out of the divergent opinions expressed by the two learned Division Benches of this Court with regard to the meaning of the proviso appended to section 10 of the Family Courts Act,1964.


2. The terms of reference were not formulated, therefore, the Bench prior to the date of hearing formulated the following points of law:


(i) Whether under section 10(4) of the Family Courts Act, the Judge is not competent to grant a decree on the basis of `Khula’ at pre-trial stage irrespective of the fact as to whether the dower was paid or’ not?


(ii) Whether the Family Court is under legal obligation to postpone/defer the grant of decree on the basis of `Khula’ if the question of payment or non-payment of dower is disputed and shall try both the issues in a full dress trial.?


(iii) Whether the injunctions of Islam and “Sunnah” debar Judge/Qazi from exercising powers/jurisdiction that the dower/other benefits received by the wife are not returnable in full or in part to the husband, keeping in view, the duration of marital bond and such other factors which would cause-hardship to the wife in her future life keeping in view her social and financial status?


Arguments heard and record perused.


3. Through Ordinance LV promulgated on Ist October, 2002 besides incorporating other amendments into the Family Courts Act, 1964, a proviso was added to section 10 which reads as follows:–


“Provided that notwithstanding any decision or judgment of any Court or Tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.”


4. The pivot of controversy is the omission on the part of the legislature as to what procedure the Family Court shall adopt where the payment of dower is a point of contest between the parties.


5. The proviso has conferred authority on the Family Court to dissolve the marriage if reconciliation fails and shall direct the wife to return the dower she has admittedly received.


6. The cardinal principle of construction of statute is that ordinarily the Courts are to interpret the statute to discover the intent of the legislature giving full effect to it in its letter and spirit. It has no powers to legislate by adding to a statute what is expressly omitted therefrom or to delete what is expressly mentioned therein. The principle, which is consistently followed, is not open to any debate.


7. However, the said principle is subject to exception that while interpreting a statute, Court has to supply the obvious omission in it whether accidental or inadvertent so that, the principal object for which it has been enacted is achieved and the true intent of the legislature is given effect. The Court in some cases may also recommend to the legislature to supply such omission through legislation so that the error, ambiguity or absurdity therein may be removed and the object sought to be achieved is not defeated.


8. To discover the object and true intent of the legislature behind enacting the proviso, the Court has to go through the entire scheme of the law on the subject including the amendments incorporated into it through Family Courts (Amendment) Ordinance LV 2002. For carrying out such exercise, the preamble of the Act has to be attended first which is to the following effect.


Preamble.–Where is it expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith;


It is hereby enacted as follows:”


9. For achieving the object of expeditious disposal of matrimonial disputes, through the provision of section 17 of the Act, the provisions of the Code of Civil Procedure and the Evidence Act (replaced by Qanun-e-Shahadat Order 1984) have been made inapplicable except sections 10 and 11 of the Code. The mode of trial under the scheme of the Act is summary in nature. However, in the past, the disposal of such cases have had to consume considerable time like regular civil suits because various factors were the cause for the delay.


10. When the above scheme of law providing speedy disposal of matrimonial disputes fails to achieve the desired object, the legislature was constrained to introduce more efficacious and speedy remedial measures curtailing the life of litigation in such disputes. For this purpose, the Family Courts (Amendment) Ordinance, LV of 2002 was promulgated. The new law has brought about radical changes in the original text of the various provisions of the Act including sections 7, 8, 9, 10. The intent of the legislature is further reflected in the newly added section 12-A which has made it mandatory for the Family Court to decide matrimonial disputes including cases for dissolution of marriage within a period of six months from the date of institution. In case of its failure, the matter has to be reported to the High Court through a written complaint.


11. To firmly ensure reduction of delay in disposal of matrimonial disputes, the spouses have been given right to put a counter-claim once a right but to claim it in his written statement. Similarly, in a suit filed by the husband for restoration of conjugal rights, the wife has to claim her dower, dowry, maintenance etc. in her written statement. In this way the old procedure resulting into multiplicity of litigation causing delay in the disposal of matrimonial disputes has been completely replaced by the new scheme of law. The primary object behind such amendments obviously is to ensure quick disposal of such cases. Besides the said amendments, the schedule appended to the Act has also amended and other matters relating to matrimonial disputes have been included therein investing jurisdiction in Family Courts to decide the same but expeditiously and within the given timeframe.


12. Under the unamended scheme of the Act, the Family Courts could not adhere to the requirements of law to adopt summary procedure. The Courts used to indulge in holding full dress trial. In majority of cases, proceedings were to consume many years. The decree so granted in such cases had become worthless for the wives as by then they were no more within the marriageable age.


13. To suppress this mischief, the legislature with obvious intention has added the proviso to section 10 of the Act so that quick relief of dissolution of marriage on the basis of “Khula” may be granted to the wife at a pre-trial stage.


14. The terms/words “Haq Mahr received by the wife in consideration of marriage at the time of marriage” are of considerable importance. The word “received” means that the payment of dower has either been established or its payment has been admitted by the wife at the time of granting such a decree. Only in that case, the Family Court has to simultaneously direct the restoration of dower to the husband. This condition, no doubt, is mandatory but is subject to proof. Now the question the Court is confronted with is as to what kind of procedure the Family Court has to adopt in case the payment of dower to wife becomes a contested issue. Whether the Family Court has to defer the grant of decree till the time such issue is resolved/determined after holding full dress trial forcing the spouses to live in hateful union crossing the limits ordained by Almighty Allah or it may grant a conditional decree.


15. In our view, much restricted interpretation of the proviso would certainly render it ineffective and of no utility. The obvious object and intent of the legislature would thus be defeated and family life of the spouses would remain detestable ensuring devastating effects on the society like a hell fire. Such a course would be in derogation of the injunctions of Islam. The impossible could not be made possible.


16. Dower is a consideration for marriage contract, on its dissolution the contract stands rescinded and then the consideration paid remains un-discharged debt liability would be subject to proof, the burden of which is undeniably on the ‘husband to discharge by adducing evidence to that effect unless it is shown to have been paid either in the dower deed or in the “Nikah Nama”. If the Family Court defers the grant of decree because the payment of dower is a point of contest, it has to revert back to the old fashion of trial where both the parties would lead evidence, such process, in all probabilities, would consume sufficient time. Thus the purpose intended to be achieved through the proviso would be defeated.


17. Keeping in view the entire scheme of the law, the sole object and intent of the legislature is to ensure the expeditious disposal of such disputes. The timeframe fixed by legislature for disposal of cases lends iron clad support to this view. Thus the ambiguity or absurdity in the proviso how to deal with the present eventuality needs to be clarified and efforts have to be made to make the same effective and meaningful so that the object of the legislature is achieved fairly and squarely.


18. The consistently followed principle on the construction of statutes is that proviso always serves as an exception and exemption to the main provision of law limiting, extending its scope or making the main provision subject to it. This view was held by the Honourable Supreme Court in the case Pramatha Nath Chowdhury and 17 others v. Kamir Mondal (PLD 1965 Supreme Court 434).


19. In the case of absurdity, it is permissible for the Courts to make -attempts to seek the second meaning making the statute to operate and supply the obvious omission by modifying the meaning of the word and even the structure of the sentence, or rejecting some words or by interpolating other words. The obligation of Courts in some exceptional cases becomes imperative to adopt such a ‘course. In this regard, guidance, may be sought from Maxwell on “Interpretation of Statutes: 4th Edition page-344. Similarly Bennion on “Statute Law” 3rd Edition Pages 168 to 172 has expressed that the Court to seek to avoid construction of an enactment which produces an unworkable or impracticable, irrational and illogical consequences. It has further been laid down that in the course of construction while clarifying absurdity, in a statute, Courts are supposed to suppress mischief and to advance the cause for the achievement of that it was enacted. However, while doing so it has not to result in disproportionate counter mischief. In the case of Haji Kadir Bux v. Province of Sindh and another 1982 SCMR 582 and in the case Mehar Khan v. Yaqub Khan and another 1981 SCMR 267, it was held that if construing the statute in its ordinary sense leads to no reasonable result, then some other interpretation of the statute is permissible.


20. Lord Reid a Jurist on the subject has set more appropriate rule on this issue in the following terms:–


“It is always proper to construe an ambiguous word or phrase in the light of the mischief which the provision is obviously designed to prevent and in the light of reasonableness and the consequences which follow from giving it a particular construction.” (Craies on “Statute Law” 7th Edition, Page 97.)


Under the provision of section 319 of Mahomedan Law by D.F. Mulla, fifteenth edition, the marriage on the basis of “Khula” can be dissolved and the wife has to return such benefits/consideration agreed upon. While interpreting this provision in the case of Monshee Buzul-ul-Rehman v. Luteesutoon-Nisa (1861)8 M.I.A 379, 395; Saddan v. Faiz Bakhsh (1920) I Lah. 402, 55 I.C. 184; Umar Bibi v. Mohammad Din (1944) Lah. 542, 220 I.C. 9, (45) AL. 51. (1861) 8 M.I.A. 379,397-398 (supra); (1861) 8 M.I.A. 379, 396 (supra), it was held that failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce though the husband may sue the wife for its recovery and that it cannot be postponed until the execution of the `Khulanama’ (deed of `Khula’).


21. On the basis of the above principles, therefore, it has become imperative, to give the proviso in question that meaning, the legislature wanted to give i.e. timely dissolution of marriage. Accordingly it is held that the family Court may grant decree for dissolution of marriage on the basis of ‘Khula’ ‘when pre-trial reconciliation efforts fail. However the Court while granting decree for dissolution of marriage on the basis of `Khula’ shall record sound and cogent reasons in support thereof and shall also state that after holding trial if the wife is found liable to pay back the considerations determined by the Court which she had received, the same are to be returned to the husband. However, the Family Court cannot defer the grant of decree on the basis of `Khula’ for disruption of marriage because the parties are not in agreement on the payment or non-payment of dower and the decree of `Khula’ shall remain effective from the date on which it is pronounced.


22. Now coming to the last point that under the “injunctions of Islam”, whether a Judge/Qazi is debarred from exercising his jurisdiction to decree that the “Haq Mehr” received by the wife in peculiar circumstances is not returnable in full or a part of it to the husband.


23. The question poses great deal of intricacy, however, guidance may be sought from the injunctions of Islam. The peculiar social circumstances of the society would also be the determining factors.


24. In the case of Karimullah v. Shabana and 2 others (PLD 2003 Peshawar 146), view was held that Court has the powers to refuse the return of the dower to the husband or to release him from the liability of its payment to the wife where cruel treatment given to the wife by the husband is established and decree for dissolution on basis of `Khula’ is to be allowed. We have no reason to take a different view.


25. Keeping in view the command of Almighty Allah given in Verse No.229, “Surah Aal-Baqarah” the divine ordainment is in the following terms:–


One cannot dare to deviate from the command of Allah given in the Holy Qur’an. However, the translation of Verse 229 of Surah Aal-Baqarah made by Hazrat Maulana Mahmood-ul-Hassan is to the following effect:–


Hazrat Maulana Abut Aala Maudodi in “Tafheem-ul-Quran” has translated the above verse in the following words:


Hazrat Maulana Mahmood-ul-Hasan and Hazrat Maulana Abut Aala Maudodi both have given the same translation to the above Verse. However, while interpreting ‘and construing the true import of the Verse somewhat liberal approach has been adopted in the matter of determining the consideration to be returned by the wife.


26. The words used “some consideration” is of paramount importance because if the Commandment of the Allah Almighty was to the effect that the wife has to return all that which she had received from the husband, then of course, no room was left to deviate therefrom but the verse of the Holy Quran has reduced the burden on the wife by commanding to return some consideration to the husband, therefore, the same in no manner places the wife under obligation to return each and every thing whether in cash or kind she has received from her husband at the time of her release from the wedlock on the basis of “Khula”. Even the word “.Haq Mahr” has not been used in this verse nor all benefits received by the wife have been referred to. In this view of the matter, some discretion is left to the Judge to determine the consideration which is to be returned by the wife to the husband.


27. The first case in the Islamic history is that of Sabit Bin Qais (R.A.), who was having unattractive complexion and short ‘stature, therefore, his wife Jameela Bin Abi Bin Salul (R.A.) made supplication to the Holy Prophet (peace be upon him) to release her from the marital bond. On hearing these words, the Holy Prophet (peace be upon him) asked her as to whether she is ready to return the orchard which she has received from her husband to which she expressed willingness and then the Holy Prophet (peace be upon him) directed the husband to receive back the orchard and release his wife from the wedlock. The second precedent on the issue also relate to Hazrat Sabit Bin Qais (R.A.) where his second wife got herself released from the wedlock in the same way.


28. In the above two cases, it is not clear as to at what stage divorce on the basis of `Khula’ was sought by the two wives of Hazrat Sabit Bin Qais (R.A.). No. details are available as to whether by then they were blessed with a child or not, the deducible inference would thus be that, the marriage was dissolved probably at the initial stage, on the personal dislike of the wife.


29. The cited Verse of the Holy Qur’an would suggest that the wife has to return some consideration to the husband on seeking dissolution of marriage on the basis of `Khula’. It does not command in express words and clear terms that the entire consideration benefits/Haq Mehr received by the wife has to be repaid, therefore, in our view, in peculiar and exceptional circumstances, the Judge has the authority to determine that the Haq Mehr/consideration as a whole is not to be repaid by the wife but a part of it. Similarly, it can also determine as to what extent the husband can be relieved from the payment of dower, to the wife, if not already paid.


30. While exercising such discretion in that regard, the Judge while dissolving marriage on the ground of `Khula’ amongst other, may take into consideration the following conditions and circumstances.


(i) If it is proved before it that the wife was neither disobedient nor was a major contributory or a cause for the hateful and strained relations, rather the fault on this account is attributable to the husband;


(ii) In a case where `Khula’ is sought by an orphan lady who has no resources or insufficient financial means to pay back the compensation/consideration or part of it, in such a situation, she had not to be forced to return the whole or part of the same as any strict view in the regard would force the lady to live a sinful life to arrange money for payment. Such a course would be in disregard for the injunctions of Islam being a detestable act;


(iii) In case where the husband has taken some steps for contracting a second marriage without the required permission although it has not been solemnized by then and the fault of crossing the limits of Allah Almighty is well attributed to him;


(iv) In case where the wife has spent the full blooming, the blossom full and peak of her life with the husband and at the fag-end of her life when her youth and beauty ‘both have faded and is unable to remarry after divorce/’Khula’. The same shall be taken into consideration;


(v) If the wife is a destitute and after divorce/’Khula’, she is left with no shelter to live a graceful life and after considering all the surrounding circumstances, it is evident that she is unable to repay the dower or part of it; and


(vi) The Judges of the Family Courts shall give deep thought to the facts and circumstances of each case so that the above concession based on the interpretation/construction of Islamic injunctions are not extensively misused.


The Judge may also consider other similar circumstances so’ that the wife is not forced to live impious life for arranging money to repay in full or part of the consideration to the husband. Similarly, the husband is not to be let off from the payment or part payment of the dower if still outstanding enabling the divorced wife to live a pious life with grace and dignity.


31. During the past about 40 years both through legislative enactments or judicial decisions, .the lot of Muslim woman has been improved to a reasonable extent. In Syria, Tunisia, Egypt, Jordon, Turkey and Iran radical changes have been introduced in the family laws limiting and curtailing the right of man to divorce his wife at his whims and also with regard to the break-up of marriage on the basis of “Khula In our judicial history, the cases of Mst. Balqis Fatima v. Najam ul Ikram Qureshi (PLD 1959 (W.P.) Lahore 566 and that of Khurshid Bibi’s case (PLD 1967 S.C. 97) are the leading judgments on the subject wherein fair attempts have been made to neutralize and dilute the right of divorce by the husband and has paved way for the wife to seek dissolution of marriage on the basis of “Khula”.


32. It must be kept in mind that the religion of Islam` unlike other religions has given considerable rights to females. They have to get share in the property of parents, children and husband.


The only ‘obligation of Muslim woman is to be faithful and obedient towards her husband and to do domestic work. She is not required, to do labour/work for earning bread because that responsibility is exclusively of the husband. The entire scheme of the injunctions of Islam is aimed at establishing a Welfare State, the last sermon delivered by the Holy Prophet (peace be upon him) is a complete charter of human rights based on equity and equal treatment. Therefore, Family Courts/Qazis while determining the quantum of dower or part of it, the wife has to return to the husband while seeking decree for dissolution of marriage on the basis of “Khula” shall always keep in mind the above principle and be given deep thought and consideration.


As discussed above, forcing a financially weak or destitute wife to return the entire dower may push her to prostitution or other antisocial activities for earning money to satisfy the decree. This would be highly prejudicial to the society and the State as well. Thus if the Family Court after due satisfaction is of the view that the divorced wife has no means to repay the dower as a whole or part of it and it genuinely apprehends that the wife would opt to live immoral life to arrange money for payment of the dower, then it has to refuse to grant the same so that the Judges/Courts who are supposed to do substantial justice may not be blamed to be contributories in such a detestable acts.


33. Before parting with this judgment, we deem it essential to hold that the obligations of Family Courts/Qazis while exercising powers under the proviso to section 10(4) of the Family Courts Act have now been increased manifold. They shall have to make all-out efforts to conduct the proceedings in a professional investigative manner while probing the subject matter and shall strive to discover the truth as to who amongst the spouses is at fault and that meaningful attempts must be made to preserve the marriage because in an Islamic Welfare State, a family is a primary unit, any sort of disturbance therein or its frequent break up would destabilize the society as a whole. Peaceful and happy union between spouses would serve as a linchpin for the peaceful and healthy society as a whole. In view of the radical changes introduced through the proviso, the reconciliation efforts now to be conducted must bear fruits. Careless dispensation and casual approach on the part of the Family Court Judges in this regard would increase the incidents of dissolution of marriage on the basis of `Khula’ which would be counter-conducive and detrimental to the society at large and any evils would surge out there from.


34. Almost similar observations were made and directions were given by a Division Bench at Abbottabad in W.P. No. 93 of 2004 decided on 23-2-2005 titled Muhammad Irshad v. Judge Family Court and others to which we fully subscribe.


35. In the instant case, the Family Court Judge Miss Hina Mehwesh dissolved the marriage on the strength of proviso to’ subsection (4) of section 10 of the Family Courts Act but .in a very slipshod manner. The trial Judge has not reproduced the different steps taken in the course of pre-trial reconciliation proceedings nor has stated as to what type of efforts she had made before pronouncing the short order. This type of approach is absolutely unwarranted in law and is disapproved with a warning note. Notwithstanding the impugned order being cryptic, non-speaking and infirm, as the marriage has been dissolved on 29-9-2007 and the wife has already completed the period of “Iddat” therefore, after more than a period of one and a half year, it would neither be appropriate nor the ends of justice would be secured if the impugned order is set at naught. Therefore, in view of the peculiar facts, the impugned order is maintained with a note of discard.


36. So far the contested issue relating to the payment or non-payment of dower and maintenance is concerned, that must be decided expeditiously and shall be subject to the guidelines laid down above albeit in his written statement, the petitioner has not stated anything about the payment of dower but that issue is left to the trial Court to decide.


37. After promulgation of the proviso to section 10(4) of the Family Courts Act 1964, much water has flowed down the bridge, therefore, the cases in which such decrees on the basis of `Khula’ have attained finality on the expiry of “Iddat” cannot be reopened and the same shall be deemed to have been validly dissolved as the wife/decree holder cannot be punished for the act of the Court.


38. It is emphatically directed that minutes of the reconciliation efforts must be separately recorded with reasonable details, be read over to the parties or their agents/counsel and the signatures/thumb- impressions of the parties be obtained thereon so that this Court or Court of appeal is in a position to ascertain the nature of the efforts made by the Family Court during reconciliation proceedings and to see as to what were the respective stances of the parties.


All the three law points/questioned formulated hereby determined in the above manner. The office is directed to re-list both the Writ Petition No.1797 of 2007 Dr. Farkhruddin v. Mst. Kausar Takreem and Writ Petition No.1729 of 2008 Qazi Muhammad Ashraf v. Rahat Yasmin before a Division Bench for disposal accordingly.


H.B.T./118/P Order accordingly.