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| November 2, 2003 | Sunday | Ramazan 6, 1424 |
Court orders dissolution of marriage
MUZAFFARABAD, Nov 1: AJK Shariat Court Chief Justice Syed Manzoor Hussain Gillani has held that a woman had a right to get divorce from her husband and a judge was obliged to order cancellation of the contract of marriage when she emphatically asserted that she could not maintain the limits set by God.
Disliking, hatred, incompatibility of temperaments, mental, intellectual, social, cultural or ideological disparity or conflict, which could distort the family life and happiness, were sufficient grounds for the wife to seek Khula, observed the CJ in his verdict on an appeal filed by a woman against the judgment and decree passed by a family court.
Sarwar Jan had sought dissolution of her marriage on the basis of Khula stating that her husband was meting out inhuman and cruel treatment to her due to which she had developed extreme disliking for him. Her suit was dismissed by the trial court.
The counsel for Ms Jan contended that it was made clear before the trial court that the spouses could not live within the limits set by the Almighty and hence it was obligatory for the court to dissolve the marriage even if the cruelty or other grounds as alleged by the appellant were not proved.
However, the counsel for the respondent contended that a wife could not claim Khula as a matter of her choice unless a reasonable proof to satisfy the court was brought on record that the parties could not live together as husband and wife within the limits set by Allah.
In his judgment, the CJ quoted a number of instances where the Holy Prophet (Peace be upon him) had ordered dissolution of marriage after hearing and believing the bare statement of the wife subject to the reimbursement of all that she had taken from her husband.
In case the union was forced for the sake of family honour it could aggravate and not resolve the problems, the CJ said. Instead the separation as against forced union was bound to end the perpetual disharmony and enable both to start a new comfortable life, he said.
“We will be committing another fault if the wife is forced to live against her free will or is kept tied in wedlock as long as the husband’s ego is not satisfied. This is not in the spirit of the Quran, Hadith or the law laid down in the light of the Holy Book,” he said.
The CJ held that equality was to be maintained between the spouses by allowing the wife the right to obtain divorce through the intervention of the courts as against absolute right of the husband to divorce her at any time and even without any reason.
The unfettered powers of husband were counter balanced by the right of wife to obtain dissolution through court subject to the condition that if the husband was not at fault, she should compensate him and if he was found at fault she should not pay anything, he said. “This right cannot be made hostage to the husband’s pleasure nor subjected to social or family bounds, except the satisfaction of court that the spouses cannot maintain the limits set by God in case the marriage is not dissolved,” he held.
The wisdom behind involving the court was to enable it to regulate the guardianship and maintenance problems of minor children and sucklings, who remained attached to the mother and not to the father, the CJ said, and passed the decree of dissolution of the marriage in favour of Ms Jan on the basis of Khula.
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