ISLAMABAD: The Supreme Court on Monday held that Islam confers the right of Khula (separation) by virtue of which a Muslim woman can get herself released from the bond of marriage if she could not live for any reason with her husband within the limits prescribed by Allah Almighty.

“Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together, it permits a separation,” explained Justice Syed Hasan Azhar Rizvi in a judgement he wrote.

Justice Rizvi was member of a three-judge bench, headed by Justice Muhammad Ali Mazhar, and also comprising Justice Irfan Saadat Khan that had taken up an appeal by one Sohail Ahmed against a decision of the Sindh High Court (SHC) last year.

The case revolves around a marriage between Sohail Ahmed and Samreena Rasheed, a Pakistani Am­­­erican, duly registered at New York in accordance with Islam­­ic law against a dower amount of $5,000.

Court dismisses appeal of Pakistani husband against SHC decision

However, within nine months of their marriage, petitioner Sohail allegedly maintained a harsh and irresponsible behaviour with the respondent (Samreena) and then re­turned to Pakistan. Consequent-ly, hatred developed between the spouses and the respondent filed a suit on Oct 12, 2019, in a family court of Karachi for the dissolution of marriage by the way of Khula.

The petitioner contested the suit by filing an application on Dec 17, 2019, for dismissal or return of plaint on the ground that courts in Pakistan have no jurisdiction to entertain the case as marriage was solemnised in the US and the cause of action also accrued therein.

This application was dismissed by the family court on Feb 27, 2021, which was assailed by the petitioner before the SHC. Thereafter, in the family suit, reconciliation proceedings were conducted. And after the failure of the reconciliation proceedings, an order for the dissolution of marriage by way of Khula was passed on April 10, 2021, by the family court and preliminary decree was prepared the same day.

Being aggrieved, the petitioner filed another constitutional petition before the high court challenging the withdrawal of the suit. Both the petitions filed by the petitioner were consolidated and decided by the SHC on Feb 6, 2023.

The Supreme Court, after hearing the case, held that family courts in Pakistan have jurisdiction to entertain the matter and the trial court has rightly exercised so while deciding the question whether the family courts in Pakistan have jurisdiction when the wife was a dual citizen of Pakistan and the US and residing abroad at the time of the institution of the suit, whereas, the husband is national and permanent resident of Pakistan.

In the present case, though the respondent was living in the US at the time of the institution of the suit, the respondent usually comes to Pakistan, acquired her education in Karachi and visits her family in the city from time to time.

The seven-page order said the right and mode of Khula has been described in a verse of Surah Baqra: “The divorce is twice, after that, either you retain her on reasonable term or release her with kindness. And it is not lawful for you (men) to take back (from wives) any of your Mahr (bridal money given by man to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (Mahr or a part of it) for her ‘Al-Khul’ (divorce). These are the limits ordained by Allah, so do not transgress them. And whoever transgresses the limits ordained by Allah, then such are the Zalimun (wrong-doers, etc.).”

In the present case, the judgement said, the preliminary decree passed by the family court for the dissolution of marriage by way of Khula was in due compliance with Section 10(4) of the West Pakistan Family Courts Act, 1964.

The record reveals that after preliminary decree of Khula, the respondent has contracted a second marriage in the US. The petitioner also attempted to contract second marriage in Pakistan as he has made several applications to relevant authorities for permission to solemnise second marriage, the judgement recalled.

Thus, the petitioner was unnecessarily dragging the respondent into litigation when the marriage stood dissolved, it said.

In the end, the judgement explained the petitioner failed to point out any infirmity or illegality that could persuade the Supreme Court to interfere in the matter. There­fore, the petitions being meritless are dismissed and leave to appeal is refused, the apex court ruled.

Published in Dawn, January 16th, 2024

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