JUDICIAL DIVORCE AT SUIT OF WIFE, DISCUSS 3, CASE LAWS.

Basitur Rahman.
Student of Bachelor of Law (Five Years)
6th semester
Roll No: 14
Group “E”.
Islamic Personal law II.

Department of Law
Abdul Wali Khan University Mardan
Khyber Pakhtunkhwa Pakistan.
 Table of Contents

1.
Introduction.
2.
Judicial divorce.
3.
Introduction.
4.
Meaning of Judicial Divorce.
5.
Grounds Upon which the Court issue decree of dissolution of Marriage:
a. Absence of Husband.
b. Failure to Provide Maintenance.
c. Imprisonment of Husband.
d. Failure to Perform marital obligation.
e. Impotence of Husband.
f. Insanity of Husband.
g. Option of Puberty.
h. Cruelty of Husband.
i. Apostasy of Husband.
6. Cases through which the Dissolution of Marriage occurred.
a. Case 1.
b. Case 2.
c. Case 3.
7. Conclusion.
___________________________________________________________________________

DIVORCE
Introduction:
It is discussed in Quran in Sura Al-Baqra under verses nos. 226, 236, 237, Sura
Alahzab verse no. 49, Sura Mujadila verses nos. 3 and 4, and Sura Talaq verses from
1 to 7.
It means to discriminate, leave, or reject.
In Islamic law it is release from the tie of the marriage either immediately or
eventually. It can take place personally or through an agent. Right to divorce may be
delegated. It may be either express or implied

Judicial divorce:
Introduction:
A court decree that terminates a marriage; also known as marital dissolution.
A divorce decree establishes the new relations between the parties, including their dut
ies and obligations relating to property that they own, support responsibilities of either 
or both of them, and provisions for any children.When a marriage breaks up, divorce l
aw provides legal solutions for issues that the Husband and
Wife are unable to resolve through mutual cooperation.

Meaning of Judicial Divorce:

Judicial divorce means separation of spouses by the suit of wife in the court, and then
the court issue the decree of the dissolution of marriage after certain
procedure.

Grounds Upon which the Court issue decree of dissolution of Marriage:

 Following are the reasons against which a competent Court issues the degree for the
dissolution of contract of marriage:
Absence of Husband:
The wife is entitled to obtain a decree for the dissolution of marriage, If whereabouts
of husband remains unknown for or more than four years to his family, relatives,
neighbors, and friends. Wife may invoke the door of Court for
dissolution of contract of marriage. It is noteworthy that if the husband appears
within six months after the issuance of decree, Court may cancel such decree thus it
is reversible.
Failure to Provide Maintenance:
The wife is entitled to obtain a decree for the dissolution of marriage, for If
maintenance is remained unpaid for a period of two years may put contract of
marriage cancel.
Imprisonment of Husband:
The wife is entitled to obtain a decree for the dissolution of marriage, If Court has
confirmed imprisonment to husband for or more a period of seven years would cause
dissolution of marriage. It excludes the period of proceedings.
Failure to Perform marital obligation:
The wife is entitled to obtain a decree for the dissolution of marriage, If without any
reasonable cause or excuse husband has failed to perform conjugal
rights for or more than three years shall give right to his wife to go to Court for
dissolution of contract of marriage.
Impotence of Husband:
The wife is entitled to obtain a decree for the dissolution of marriage, If husband is
impotent right from the beginning of contract of marriage. One year’s
chance for improvement by way of medication is given.
Insanity of Husband:
The wife is entitled to obtain a decree for the dissolution of marriage, two years’
insanity is also sufficient cause of dissolution.
Option of Puberty:
The wife is entitled to obtain a decree for the dissolution of marriage, Option of
puberty is given to wife after attainment of the age of puberty. She has to decide about
marriage within two years.
Cruelty of Husband:
The wife is entitled to obtain a decree for the dissolution of marriage, Cruelty is also
not tolerable and considered reasonable cause to do so.
Apostasy of Husband:
The wife is entitled to obtain a decree for the dissolution of marriage, Apostasy of
husband dissolves the contract of marriage.
Cases through which the Dissolution of Marriage occurred:
In nowadays the dissolution of marriage through judicial mode is increasing and most
of the divorce has been occurred through Court. Let us discuss some of the case in
which the divorce has been occurred.
Case:1
Citation:
2019 C L C 1562
[Peshawar]
Parties to the Suit:
Mst. TUHARAT FIRDOS…………………………………………….Petitioner.

Vs

IMTIAZ KHAN and 2 others……………………………………..Respondents.

Writ Petition No. 4841-P of 2016, decided on 13th March, 2019.

Family Courts Act (XXXV of 1964)---

S. 5, Sched, Suit for dissolution of marriage, Cruelty, Khula.
Council for Petitioner:
Advocate Atizaz Mansoor
Council for Respondent:
Advocate Muhammad Azam Khan for Respondent.
Dates of hearing: 11th March and 13th March, 2019
Before Peshawar High Court Peshawar:
SYED AFSAR SHAH, J.
Through the instant petition under Article 199 of the Constitution of Islamic Republic
of Pakistan, 1973,
Brief Facts:
1. That On 07.7.2014, Mst. Tuharat Firdos, the petitioner, filed a suit against
Imtiaz Khan, the respondent, for dissolution of her marriage on the ground of
cruelty
and recovery of dower, consisted of cash amount of Rupees one lac, five tola
gold ornaments along with house, measuring 10 marlas.
2. The petitioner/plaintiff was married to the respondent/defendant on 03.12.2010
in lieu of dower mentioned above and in which respect a proper Nikkah nama
was also executed.
3. The respondent/defendant was abroad in connection with earning of his
livelihood, while she herself being employee of health department was residing
in Kalabat, however, the attitude of the respondent/defendant towards her from
the very start was very cruel as he always used to beat her.
4. That the petitioner/plaintiff is disable with one leg. She made efforts for the
restoration of cordial relation with the respondent through elders of the locality,
but in vain, however, as per her version, she was divorced orally.
5. That When put on notice by the Court, the respondent contested the suit, inter
alia, on the ground that the dower had already been paid to the
petitioner/plaintiff.
6. That so far as the divorce, as alleged by the petitioner, is concerned, he has out
rightly denied the same.
7. That the respondent/defendant also made a prayer for the grant of decree for
restitution of conjugal right and recovery of cash amount allegedly taken by the
petitioner at the time when she was deserting her conjugal domicile.
8. According to respondent/defendant, he has sent so many Jirgas to the petitioner
for her settlement, but with no fruitful results.
 9. That the learned lower court after recording evidence of the parties for and
against dismissed the suit of the petitioner/plaintiff, while claim of the
respondent/defendant for restitution of conjugal right was allowed, vide
judgment recorded on 9.5.2015. The judgment/decree of the learned lower
court was impugned by the petitioner before the appellate forum. The learned
Additional District judge-IV, Swabi, vide its judgment rendered on 27.9.2016,
dismissed the appeal and aggrieved of the same, the petitioner has come to this
court by filing the instant petition.

Legal Point:
The suit was filed before the Family Court by Present petitioner/plaintiff against the
respondent/defendant for the dissolution of marriage under section 5 of the Family
Court act 1964 on the basis of husband cruelty towards her.
Order:
The appeal was disposed of accordingly.
Analysis:
After thoroughly perusal of the available record and reappraisal of evidences, I
concluded that, the petitioner belongs to a poor family. She remained as wife with the
respondent, who had received benefits and when so, I, in the peculiar facts and
circumstances of the case, direct the petitioner to return the cash amount of rupees one
lac and five tola gold ornaments to the respondent in lieu of her marriage on the
ground of khula, while she is allowed to retain the house, keeping in view the
principal of reciprocal benefits.

Case 2.
Citation:
2017 Y L R Note 149
[Shariat Court (AJ&K)]

Parties to the Suit:

Mst. NAZMEEN AKHTER…………………………………..Appellant

Vs

LAL KHAN…………………………………………………….Respondent

Family Appeal No.91 of 2015, decided on 8th December, 2016.

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---
S.5, Sched.---Suit for recovery of maintenance allowance
(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---
S. 5, Sched---Dissolution of marriage on the basis of khula'
Council for the Appellant:
Sardar Zaffar Iqbal for Appellant.
Council for the Respondents:
Raja Nadeem Ahmad for Respondent.
Before Shariat Court (AJ&K):
 M. TABASSUM AFTAB ALVI, J.---The supra titled appeal has been preferred
against the impugned judgment and decree of Civil Judge, empowered as Judge
Family Court, Sehnsa, dated 30.06.2015
Brief Facts:
1. That Mst. Nazmeen Akhter, appellant-plaintiff, filed two suits; one for
dissolution of marriage and the other for maintenance allowance against
respondent-defendant, before Judge Family Court, Sehnsa, on 16.08.2014. The
respondent-defendant, Lal Khan, also filed a suit for restitution of conjugal
rights before the said Court on 10.11.2014
2. That the learned trial Court framed issues in light of pleadings of the parties on
03.2.2015. the aforesaid suits were consolidated and the learned Judge Family
Court, after due process of law recorded evidence of the parties.
3. That the learned Judge Family Court, after conclusion of trial and hearing
arguments passed a decree for dissolution of marriage on basis of 'Khula',
against consideration of dower amount, in favour of Mst. Nazmeen Akhter,
appellant-plaintiff her other suit to the extent of maintenance allowance was
dismissed, whereas, the suit filed by Lal Khan, respondent defendant, for
restitution of conjugal rights was also dismissed, vide impugned judgment and
decree dated 30.05.2015; hence, the instant appeal
4. The contention of the learned Counsel for appellant-plaintiff that the learned
Judge Family Court, committed illegality while imposing condition of
returning dower amount/ornaments, is misconceived.
5. That It is cardinal principle of Islam that the spouses cannot be forced to a life
devoid of harmony and happiness and if the parties cannot live together within
the limits ordained by Almighty Allah, then the proper course is separation.
6. That as per according to Qur'anic Verse No.229 of Surah Al-Baqara, if the
spouses think that differences and hatred between them is much developed and
they cannot live together within the limits ordained by God, then the only
proper course is separation.
7. A minute study of record reveals that appellant-plaintiff neither pointed out
fault of respondent-defendant to populate her nor proved that ornaments were
snatched away from her by the latter, rather record reveals that he made efforts
to populate her. It is evident from record that there is no possibility of reunion
of spouses within the limits ordained by Almighty Allah. However, if the
dissolution is due to some default on the part of the husband, there is no need
of any restitution. If the husband is not in any way at fault, there has to be
restoration of property received by the wife and ordinarily it will be of the
whole of the property,
8. The irresistible conclusion is that if the spouses have developed so much
hatred, disrespect and discomfort against each other and all the possible
measures of reconciliation have failed then it is always advisable to dissolve
the marriage on the basis of 'Khula' which is the right of the wife. The learned
Judge Family Court, as stated earlier, formed the opinion that Mst. Farzana
Kausar had developed such a hatred and disrespect against her husband that
she was not willing to live with him under any circumstances. Therefore, there
was no choice with the learned Judge except to pass a decree for dissolution of
marriage on the basis of 'Khula' otherwise as observed in the pronouncement
of the superior Courts the result would have been disastrous. The conclusion
arrived at by the learned Judge Family Court should not have been disturbed
in exercise of writ jurisdiction and it was rightly done so by the High Court."
Legal Point:
The suit was filed before the Family Court by wife for the dissolution of marriage and
Suit for recovery of maintenance allowance under section 5 of the Family Court act
1964.
Order:
Appeal was dismissed and maintained the decree of family court.

Analysis:
From the Above facts I, vividly indicate that the learned Judge Family Court, did not
commit any illegality regarding to the recovery of maintenance allowance and
dissolving the marriage on the ground of 'Khula' because Mst. Farzana Kausar the
appellant had developed such a hatred and disrespect against her husband that she was
not willing to live with him under any circumstances. Therefore, there was no choice
with the learned Judge except to pass a decree for dissolution of
marriage thus, argument of the learned counsel for appellant is turned down and the
impugned judgment and decree dated 30.06.2015, are maintained.

Case 3.
2015 M L D 955
[Supreme Court (AJ&K)]
Parties to the Suit:
MEHARBAN HUSSAIN…………………………………………Appellant

Vs

ZAHIDA KAUSAR and 6 others………………………………..Respondents

Civil Appeal No.91 of 2013, decided on 28th March, 2014.
Azad Jammu and Kashmir Family Courts Act (XI of 1993)—
S. 5, Sched---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.
42-
Appeal to Supreme Court---Dissolution of marriage---Khula
Council for Appellants:
Advocate Ch. M. Suleman for Appellant.
Council for Respondent:
Advocate Hafiz Fazul-ur-Rehman Dar for Respondents.
Before Supreme Court of Azad Jammu Kashmir :
Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J
This appeal by the leave of the court has been directed against the judgment and
decree of the learned Shariat Court dated 17-4-2013, whereby, the appeal filed by the
appellant was dismissed.
Brief Facts:
1) This appeal by the leave of the court has been directed against the
judgment and decree of the learned Shariat Court dated 17-4-2013,
2) The relevant facts necessary for disposal of the instant appeal are that the
spouses contracted marriage on 26-1-2008, in lieu of dower, Rs. 1,00,000
(in shape of 5 tola gold)
3) That the relations between the spouses became strained and they separated.
4) That Mst. Zahida Kausar, the respondent, filed a suit for dissolution of
marriage.
5) That Maharban Hussain, the appellant, filed a suit for restitution of
conjugal rights.
6) The learned Judge Family Court consolidated both the suits and after
necessary proceedings, the learned Judge Family Court dismissed the suit
filed by the appellant for restitution of conjugal rights.
7) The suit filed by the respondent for dissolution of marriage was decreed in
her favor on the ground of Khula. Both the parties feeling aggrieved from
the judgment of the trial Court, filed separate appeals before the Shariat
Court.
8) That Ch. Muhammad Suleman, Advocate, the learned counsel for the
appellant, argued that the judgment of the Shariat Court is against law and
the facts which is not sustainable in the eye of law. Further argued that the
learned Shariat Court fell in error while not taking into account that suit
for dissolution of marriage was filed on the ground that the appellant is
impotent and unable to perform his marital obligations and not on the
ground of Khula. He contended that the learned Shariat Court could not
take into account that the learned trial Court has deviated from the
mandatory provision of the Dissolution of Muslim Marriages Act, 1939,
while passing the decree for dissolution of marriage on the basis of Khula.
He contended that by juxtaposing clause (C) of the proviso attached to
section 2 subsection (v) of section 2 of the Dissolution of Muslim
Marriages Act, it is observed that if a lady claims that her husband is
impotent then the Family Court is under legal obligation to furnish a year's
time to the husband while allowing him to remain live with his wife. If
despite that the husband fails to perform his marital obligations, then the
decree can be passed on the ground of impotency. Whereas, both the
Courts below have ignored this important legal aspect of the case while
passing the impugned judgments. He further contended that the respondent
failed to prove that the appellant is impotent as the doctor has declared him
fit for performing conjugal rights. In this way, the learned Judge Family
Court was not justified to grant the decree on the ground of Khula as no
other ground except impotency was raised by the respondent, therefore, the
relief granted by the Courts below to the respondent is beyond the
pleadings. He submitted that the respondent never sought the decree on the
basis of Khula rather she claimed the decree on the ground of impotency
which was not proved by her through any sort of evidence. He submitted
that both the Courts below also misread the evidence. As per Nikkah
Nama, the dower was fixed as Rs.1,00,000 along with 5 tola gold, but
while passing the impugned judgment, the respondent has been ordered to
pay only Rs.1,00,000 as consideration amount of Khula to the appellant,
whereas, the value of 5 tola gold is more than Rs.2,50,000. lastly prayed
that in case the Court comes to the conclusion that the impugned decree of
Khula has rightly been passed then the decree of the learned Shariat Court
is required to be, modified while granting the amount of Khula equal to 5
tola gold. He has relied upon they case reported as Mst. Ayesha Shaheen v.
Khalid Mehmood and another 2013 SCMR 1049.
9) On the other hand, Hafiz Fazal-ur-Rehman Dar, Advocate, the learned
counsel for the respondent, while controverting the arguments advanced by
 the learned counsel for the appellant has stated that there are concurrent
findings recorded by both the Courts below, therefore, no interference is
warranted by this Court. He argued that the learned counsel for the
appellant has failed to point out any misreading or non-reading of the
evidence. He further argued that according to verse No.229, Surah Al-
Baqarah, of the Holy Quran, it is settled that in case the spouses feel
apprehension that they will be unable to live together within the limits
ordained by Almighty Allah, then it would be better for them to separate
from each other.
Legal Point:
The suit was filed before the Family Court by wife for the dissolution of marriage and
under section 5 of the Family Court act 1964.
Order:
Appeal was dismissed accordingly.

Analysis:
In view of what has been discussed above, the appellant has failed to point out any
illegality or irregularity in the impugned judgment to call for interference by this
Court. Both the Courts below attended the controversy in a legal manner and passed
the impugned judgments while assigning the solid reasons. Therefore, finding no
substance, this appeal stands dismissed. No order as to the costs.
Appeal dismissed.

Thank You.