Purpose of the West Pakistan Family Courts Act, 1964
The purpose of the West Pakistan Family Courts Act, 1964, is to expedite the family matters in order to save the families from permanent and lengthy litigation in the Courts. Under the provisions of Section 2(ii) and (viii) of Dissolution of Muslim Marriages Act, 1939, the marriage cannot be dissolved on the basis of pleadings of the parties and on the failure of reconciliation between the parties. The point of hatred and cruelty, if agitated can only be decided by the trial Court after recording the evidence. Under Section 10(4) of the West Pakistan Family Courts Act, 1964, the marriage can be dissolved on the basis of Khula in summary proceedings and the requirement in such proceedings is to provide an opportunity of reconciliation and as a consequence of failure thereof decree for dissolution of marriage can be passed and in this event the wife has to forego her claim of dower. The Court on its own cannot deprive the lady from the dower and cannot order to relinquish the dower because the dower is the right5 of the lady given by the Shariah. This right cannot be discretionarily or arbitrarily exercised by the Court.
The concept of Khula has been interpreted by various scholars in a number of books on the subject. In Al-Hudaya it is summed up:- “if the cruelty is from the side of the husband his realizing a compensation from the wife for her relinquishment (Khula) is disapproved. If insubordination is from the wife, in that case, the husband may take back only what property which he had given to her. It was further observed that in case where Khula is decreed on the basis of cruelty the Court may not give any compensation to the husband.”
Now if the above said proposition is kept in view, the logical and philosophical dimension of the matter it can be said that a husband if left unchecked shall apprehend no loss if he, for any reason, develops a disposition to break the bondage of marriage and resorts to cruelty with a mind to compel the wife to demand Khula instead of giving benefit of retaining or getting back the dowered property/amount. Such a cruelty would undoubtedly be a purpose oriented one of which the law and Courts must take notice, so as to keep the husband off the oche of cruelty. The jurists have done much work on this proposition that since the lady has filed suit for dissolution of marriage she had also filed a suit for dower and dowry articles along with maintenance allowance and her specific plea in the suit is that the husband was not paying the maintenance allowance to the children and not to her and furthermore he had expelled her from the house and all the belongings (dowry articles and dower) were lying with the husband. Under this situation the Court cannot assume the power to pass an order which is totally against the spirit of the basic law. The lady has not stated anything regarding Khula rather in her statement dated 28.09.2010 she had mentioned the reason that hatred is the cause of the cruel attitude of the husband, then the Court was under obligation to pass the decree of dissolution of marriage not on the basis of Khula because demanding of such a decree on the basis of Khula is the exclusive right of the lady which cannot be exercised by anybody even by the Court itself. The spirit of Section 10(4) of the West Pakistan Family Courts Act, 1964.
If no compromise or reconciliation is possible the Court shall frame issues in the case and fix a date for recording of evidence 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. This option can only be exercised if the lady has opted to relinquish the benefit but Court itself cannot exercise its jurisdiction.
In case when other grounds for dissolution of marriage are agitated and available in the plaint then if the Court decrees the suit on the basis of Khula under Section 10(4) of the Family Courts Act, 1964, then this is necessary for the Court to mention that decree for dissolution of marriage has been passed on the basis of ‘Khula’ and why the other grounds are not considered. In this case, the lady may be asked to return the benefit she has taken from the husband, but not the full dower. Dower will only be refused when the lady herself opts for Khula. However, the other benefit, if had been obtained by the lady can be ordered to be returned. Here I will quote the historic background of the Khula and its application in view of Qur’an and Sunnah:
Although the Court was empowered to pass a decree on the basis of Khula, but under the circumstances, when neither the lady agitated the same nor it was her request while making statement before the Court and certain other grounds existed, on the basis of which decree could have been passed for dissolution of marriage,
W.P. No.10090 of 2011
Ana Liaqat VERSUS Addl. District Judge etc. JUDGMENT