2011 C L C 1211
[Quetta]
Before Jamal Khan Mandokhail and Mrs. Syeda Tahira Safdar, JJ
ATTIQ AHMED KHAN ----Petitioner
Versus
NOOR -UL-SABA and another ----Respondents
Review Application No .4 of 2010 in Constitutional Petition No.595 of 2007, decided on
11th April, 2011.
(a) West Pakistan Family Courts Act (XXXV of 1964) ---
----S. 5 & Sched. ---Constitution of Pakistan, Art.199 ---Constitutional petition ---
Dissolution of marriage on ground of 'Khula' ---Re-union after dissolution of marriage ---
Review of the judgment by High Court, application for ---Suit filed by the plaintiff for
dissolution of marriage on ground of Khula was decreed by the Family Court ---Defendant
challenged judgment and de cree of the Family Court in constitutional petition, which
petition having been dismissed by the High Court, the defendant had filed application for
review of the judgment and decree on the ground that parties had decided for re -union ---
Plaintiff on whose request marriage was dissolved on the ground of Khula, conceded the
request of defendant and stated that parties had settled their dispute and decided to re -
union and were no more willing to implement the decree of 'Khula' ---Pronouncement of
'Khula' by the court was a single divorce, as the defendant husband never accepted it
voluntarily ---Such kind of dissolution of marriage was known as "Talaq -ul-Ba'ayen" ---
Before re -union in such -like cases "Halala" was neither condition precedent nor the
decree of 'Khula' was a hurdle in the way of re -union ---No provision of law precluded the
spouses from re -union, however, only condition was to perform a fresh 'Nikah' ---Since,
re-union of the parties after decree of 'Khula' was a result of a fresh contract, the
judgment and decree had no restraining effect upon re -marrying ---Review of the
judgments and decrees was not needed in circumstances ---When the judgments and
decrees attained finality, same would automatically become operative ---Marriage having
been disso lved, the judgments and decrees had become past and closed transactions ---
Once the judgment and decree had been implemented, those would not remain in field ---
No question of review thus would arise, in circumstances.
Fazal -e-Subhan v. Mst. Sabereen and others PLD 2003 Pesh. 1691 and Mst. Naila
Parveen and otherrs v. The State and 2 others PLD 2011 Lah. 37 ref.
(b) Civil Procedure Code (V of 1908) ---
----O. XLVII, R.1 ---Constitution of Pakistan, Art.199 ---Review of judgment passed in
constitutional j urisdiction ---Constitutional jurisdiction of High Court being an original
jurisdiction, broad rules of the Civil Procedure Code were applicable ---Right of review
was a substantive right, provided by the Code, enabling correction of an error or a
mistake in a judgment, to prevent injustice being done by the court ---Such was a step
towards correction of a decision, but in no case it was a rehearing on merits ---Judgment
passed in constitutional jurisdiction could be reviewed subject to the grounds,
contemplate d under O.XLVII, R.1, C.P.C. ---Review of an order or decree could be
sought on discovery of new and important matter or evidence, on account of some
mistake or error, apparent on the face of record or for any other sufficient reasons ---
Compromise arrived at between the parties, after a decision, would not come within any
of grounds for review ---Judgments and decrees could not be reviewed on basis of a
compromise between the parties.
Talal Rind for Petitioner.
Nemo for Respondents.
ORDER
JAMAL KHAN MANDOKHAIL, J .--- Facts in brief are that suit of the respondent
for dissolution of marriage on the basis of "Khula" was decreed by the Family Judge -
II, Quetta vide judgment and decree dated 1 -9-2005. To challenge the judgment and
decree, Const itutional Petition No.595 of 2007 was filed by the applicant/petitioner
before this Court which was dismissed on 24th November, 2009.
2. Now the applicant/petitioner has submitted an application for review of the
judgment and decree on the ground that the parties have decided to re -union. It is
important to mention here that on the first date of hearing, the respondent was also
present and she conceded the request of the petitioner. She stated that they have settled
their dispute, decided to re -union and ar e no more willing to implement the decree for
"Khula".
3. We have asked the counsel for the petitioner as to whether in view of the
injunction of Islam, after passing of a decree for dissolution of marriage, the spouses can
re-union, without observing the procedure of "Halala".
4. The learned counsel for the petitioner submitted that he has already obtained a
Fatwa from a recognized "Mufti". According to him, in case of re -union, after the
dissolution of marriage on the basis of "Khula" there is no conditio n of "Halala". The
learned counsel states that in view of development, the judgment and decree dated 1 -9-
2007, passed by Family Judge -II, Quetta and judgment dated 24 -11-2009, passed by this
Court be set aside by accepting the application for re view.
5. We have heard the learned counsel for the petitioner and also considered the
statement of the respondent. In spite of obtaining the decree for dissolution of marriage
on the basis of "Khula" from the trial Court, the respondent/wife decided to re -join her
husband. An identical issue arose before the Hon'able High Court of Peshawar, which has
thoroughly been discussed by his Lordship Mr. Justice Malik Hamid Saeed in the case of
Fazal -e-Subhan v. Mst. Sabereen and others, reported in PLD 2003, Pesh, page 169.
Relevant portion of which is reproduced as under: ---
(6) The principle of 'Khula' as laid down in various eminent commentaries on Muslim
Law in the light of sayings of the Holy Qur'an and Sunnah is to the effect that
when married parties disagree and are apprehensive that they cannot observe the
bounds prescribed by the Divine Law the woman can release herself from the tie
by giving up some property in return in consideration of which the husband is to
give her a 'Khula' and when they have done th is, a Talaq -ul-Ba'ayen, takes place.
Hence Khula is a repudiation with consent and at the instance of the wife in which
she agrees to give a consideration to the husband for her release from the marital
tie. The decree granted to the respondent/wife in thi s case is also of the kind of
'Khula' because she was found unable by the trial Court to properly establish her
assertion for the dissolution of marriage, but keeping in view the abhorrence
shown by the wife towards the husband in her statement as well as her pleadings
and the extent of unpleasantness of matrimonial relation between the parties,
which even culminated into criminal proceedings, it was held by the trial Court
that the relation between the parties has reached to the extent where the re-
union between the two is impossible and only separation will be in the interest of
both the parties.
(7) Maulana Muhammad Ashraf Ali in his book known as "Bahishiti Zaiwar", at page
20 (Fourth Part) has stated on the point as under: --
Two Fatwas; one b y Mufti Saifullah Haqqani of Jamia Darul -Uloom Haqqania,
Akora Khattak, and the other by Mufti Muhammad Naeem, District Khateeb of
Kohat are also on the file, wherein it is stated that: ---
and that: --
In view of the above, we are of the considered vi ew that in case of divorce through
'Khula' it is not obligatory on the wife to re -marry a third person before entering
into re -marriage tie with her first husband and same is the case here. The re -
marriage with same husband of course would be subject to pe rformance of another
Nikah. Section 7(6) of the Muslim Family Laws, Ordinance also allows such re -
union without 'Halala' hence we see no restraint either in the Muslim Family
Laws Ordinance or in the injunctions of Qur'an and Sunnah, not to allow t he
prayer of the husband for re -union with his wife when she is ready to live again as
wife of the petitioner within the limits of God.
6. In the present case too, the marriage was dissolved at the request of the
respondent. Pronouncement of "khula" by the Court is a single divorce, as the husband
never accepted it voluntarily, hence this kind of dissolution of marriage is known as
Talaq -ul-Ba'ayen. Relying upon the dictum laid in the above cited judgment, it is declared
that before re -union in such -like ca ses "Halala" is neither a condition precedent, nor the
decree of "Khula" is a hurdle in the way of re -union. Reliance is placed on the case of
Mst. Naila Parveen and others v. The State and 2 others, reported in PLD 2011 Lahore 37.
There is no provision of law precluding the spouses from re -union, however, the only
condition is, to perform a fresh "Nikah".
7. Since, re -union of the parties, after the decree of "Khula" is a result of a fresh
contract, therefore, the judgment and decree have no restraining ef fect upon re -marrying
hence, there is no need to review the judgments and decrees. Moreover, when the
judgments and decrees attained finality, it automatically become operative, resultantly,
the marriage becomes dissolved, in such view of the matter, the j udgments and decree
become past and closed transaction. Once the judgment and decree have been
implemented, these do not remain in field, as such, no question of review arises.
8. No doubt, constitutional jurisdiction of a High Court is an original jurisd iction,
therefore, broad rules of the Civil Procedure Code are applicable. Right of a
review is a substantive right, provided by the Code, enabling correction of an error or a
mistake in a judgment, to prevent injustice being done by a Cou rt. It is a step towards
correction of a decision, but in no case, it is a rehearing on merits. Hence, a judgment
passed in a constitutional jurisdiction can be reviewed, subject to the grounds,
contemplated under Order XLVII, Rule 1 C.P.C.
9. Without pre judice to above, the application has been filed on the ground of
settlement or compromise between the parties. Review of an order or decree can be
sought on discovery of new and important matter or evidence, on account of some
mistake or error, apparent on the face of record or for any other sufficient reason.
Compromise arrived at between the parties, after a decision, does not come within
any of the stated grounds for review. Thus, on the basis of a compromise, the
judgments and decrees cannot be reviewed.
10. In view of what has been stated and discussed above, the review application is
hereby dismissed.
H.B.T./36/Q Application dismissed .This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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