FATIMA MIRZA, Appellant, and M. H. M. ANSAR, Respondent

052-NLR-NLR-V-75-FATIMA-MIRZA-Appellant-and-M.-H.-M.-ANSAR-Respondent.pdf


Mina v. Ansar
298
1971 Present: Samerawlckrame, J., and Weeramantry, J.FATHIMA MIRZA, Appellant, and M. H. M. ANSAR, RespondentS. C: 2/70—Quazi Court, 755j836jl0
Muslim law—Shaft sect—Khula divorce—Non-availability of it to the wife in the faceof the husband’s resistance—Muslim Marriage and Divorce Act (Cap. US),s8. 28, 98 (2), Rule 12 of Schedule 3.
Section 98 (2), read with section 28 and Rule 12 of the 3rd Schedule, of theMuslim Marriage and Divorce Act makes it mandatory that in all mattersrelating, to any Muslim marriage or divorce, the status and the mutual rightsand obligations of the parties shall be determined according to the Muslimlaw governing the sect to which the parties belong. Accordingly, where, theparties belong to the Shad sect, the wife is not entitled to obtain a Khuladivorce from a court unilaterally without the consent and participation ofthe husband.
A khula divorce is one which is granted without any necessary requisite offault on the part of the husband and is in this respect basically different fromthe fasah divorce. One of the circumstances in which a khula divorce initiatedby the wife is granted is where the wife has an incurable aversion to the husbandwhich renders life together “ Within the limita of God ” impossible. Theexpression “ within the limits of God ” is generally understood to meanco-habitation with due performance of conjugal obligations.
Per Wekhamantby, 3.—“ A review therefore of the original sources, thecommentaries of the great Islamio writers, the views of modern commentatorsand the dicta contained in the case law of this country would appear to pointto the participation in the Khula divorce of the husband himself. This Courtwould be reluctant in the face of this body of authority to extend the law ashitherto understood in this country to enable a wife unilaterally to obtainthis form of divorce from the publio authorities. ’*
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Appeal from an order of the Board of Quazis. The facts are setout in the judgment of Weeramantry, J,, in the connected case Ansar v.Fathima Mina at pp. 279 et seq. (supra).
E. W. Jayewardene, Q.C., with M. S. M. Nazeem, M. Hussein andBen Eliyatamby, for the applicant-appellant.
C. Ranganathan, Q.C., with M. T. M. Sivardeen and K. Kanagaralnam,for the respondent-respondent.
Cur. adv. vult.
November 10, 1971. Samerawtckbame, J.—
I agree with the order made by Weeramantry J., and the reasonsset out in his judgment. An extension of the law as hitherto understoodin this country to enable a .wife unilaterally to obtain a khula divorceis not without some support from Muslim Law authorities and sourcesbut, in my view, it must await a widespread acceptance by the Muslimcommunity of the need for it. At present even the Board of Quazisdo not appear to consider favourably such an extension of the law.It is not for this Court, “ to embrace the exhilarating opportunity ofanticipating a doctrine which may be in the womb of time, but whosebirth is distant ”. (Judge Learned Hand in Speclor Motor Service, Inc.v. Walsh, 1944). Having regard to the rapid pace at which traditionalnotions are shed in these days, it may not be correct to regard thepossibility of an extension of the law as distant.
Weeramantry, J.—
This appeal is taken by the wife against the refusal of the Board ofQuazis to award her a khula divorce.
The facts are as set out in the previous judgment* and the only questionfor decision upon the present appeal is the availability under our lawof a khula divorce to the wife in the face of the husband’s resistanceto such a claim and his refusal to participate in any procedures requisitetowards effecting such a result.
The contention of the appellant on this matter is that such a divorcemay be obtained at the instance of the wife from an independent thirdparty, namely, the Court and that the Court has power to award such adivorce without the consent of the husband, and. even against his will.The contention of the respondent on the other hand is that the husband’sparticipation is essential to the grant of a khula divorce and that itcannot be granted by an external authority independently of the husband.In other words it is submitted that one of the essential ingredients of thekhula divorce is the act of the husband himself in granting it.
• See pp. 279 et seq. (supra).
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To assist us on this difficult question counsel have placed before usnumerous authorities going back to the original sources and to the greatcommentaries on the Muslim law, and we are greatly indebted to themfor their painstaking research into this very interesting problem.
A khula divorce is one which is granted without anynecessary requisitedivorce of fault on the part of the husband and iB in this respect basicallydifferent from the fasah divorce. One of the circumstances in whicha khula divorce is granted is where the wife has an incurable aversion,to the husband which renders life together “ within the limits of God ”impossible. The expression “ within the limits of God ” is generallyunderstood to mean cohabitation with due performance of conjugal'obligations.
It is evident from the facts of this case that the appellant wife hadreached such a stage in her feelings towards her husband that it was nolonger possible for her to live with him “ within the limits of God ”.
Against this background I proceed to an examination of the intricatelegal question argued before us.
Now, the word “ khul ” in its origin means literally “ to put off ”, and theconcept in the law of divorce iB derived from the symbolic act of throwingaway a cloak, a shoe or a similar piece of clothing. Similarly by a khulthe marriage is, so to speak, cast off, and it was apparently in ancienttimes a customary mode among the Arabs of dissolving a marriage l.
The source of authority for this type of divorce in Islam is twofold—Verse 229 of Sura 2 of the Qur’an and two of the traditions of the-Prophet.
When we address our minds to the question before us it is necessaryfor us to have regard to the fact that the school of law governing Muslimsin Ceylon being the Shafi school, the availability of this reliefindependently of the husband is to be examined in terms of theteachings of that school.
It is true that the doctrine of Taqlid which requires the views of eachschool to be rigidly followed in the areas where its. authority prevailshas recently come in for some criticism as tending to petrify or narrowthe operation of rules of law®. For a Muslim no doubt the whole of theQur’an is his province and he is not necessarily tied down to interpretationswhich one or other of the great schools have placed upon the Bacred law.We agree that no teaching or juristic interpretation can prevail againstthe Qur’an or the hadiths of the Prophet, for the former is the bed-rockof all Muslim law and the latter are second in authority only to the Qur’aniteslf. Yet where there is a conflict of interpretation and we are seekingto ascertain the views of a particular school upon a Qur’anio passage or a-Muslim tradition, the viewB of the doctors of that school who have given
1 Encyclopaedia qf Religion and Ethics edited by James Bastings, Vol. VII, p. 868-
• See MetKhurshid BOA e. Baboo Muhammad Amin, PAJ>. (1967) 8.0. 97-188.25 – Volume LXXV
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to the problem the benefit of their deep knowledge of the Qur’an andof Muslim tradition, are factors which would carry the greatest authoritywith a court.
Moreover, as far as we in Ceylon are concerned, the matter is madestatutory for us by the Muslim Marriage and Divorce Act (Cap. 115)which by section 98 (2) makes it mandatory that in all matters relatingto any Muslim marriage or divorce, the Btatus and the mutual rights andobligations of the parties shall be determined according to the Muslimlaw governing the sect to which the parties belong.
Indeed the Act gives recognition to this principle at more than onepoint. Thus section 28 provides that in regard to a divorce sought bythe wife on account of the fault of the husband, the Muslim law governingthe sect to which the parties belong will determine what amounts to a" fault So also, Rule 12 of the 3rd Schedule expressly states that theorder to be made (in the case of a divorce by a wife) shall be such as mayproperly be made under the Muslim law governing the sect to which theparties belong.
As far as the parties to this case are concerned there iB no doubt thatthe governing law is the Shafi law. It is true the Pakistan Supreme Courthas adopted a somewhat liberal attitude towards the doctrine of Taqlidin recent times1, but whatever liberality may characterise the attitudeof the Pakistan Supreme Court towards this doctrine, our approach tothe problem must necessarily be different in view of our Statute law.
It is important to remember that when that Court in Mst. KhurshidBibi v. Baboo Muhammad Amin 2 expressed the opinion that there is nowarrant for the doctrinaire fossilisation of views implicit in the inventeddoctrine of Taqlid, they were giving expression to a view which wasreached against a different statutory background to that obtainingamongst us, at any rate in regard to matrimonial matters.
We must therefore address ourselves to the question whether theShafi school looks upon a khula divorce as one to be decreed by a courtor to be granted by the husband.
We have been addressed at some length by Mr. Jayewardene on behalfof the appellant with a view to showing that, whatever be the views of theschool applicable in Ceylon, still the history in Ceylon of the matter underconsideration shows a long-standing and traditional recognition of theauthority of an external third party. For this argument he reliesprincipally on the 1800 Code, under section 75 of which a bride wishingto be divorced is obliged to inform the priest of her intention. The latteriB required before acceding to the divorce to deliberate with thecommandants on both sides in the presence of the native commissioners.If the parties do not wish to abide by the decision they are at liberty tolay their case before the competent judge.
• P. L. D. (.1087) S. O. 91-1 tO.
* Ibid.
WEERAMANTRY, J.—Mirza v. Ansar
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A consideration of such provisions would not help us however whenthe matter we are considering is one of Muslim marriage and divorce asgoverned by the provisions of the present Act, with its express requirementthat the law of the sect be applied. If the law of the sect should notcommit the matter to such an external third party, the circumstance thatit was so committed under the Code of 1806 cannot alter this result.
I pass now to the fundamental authority in Islam for the grant of akhul divorce, namely, verse 229 which, in view of the overwhelmingimportance of the Qur’an as the fountain head of Islamic law, mustnecessarily be the point of commencement for any study of khul.
The great Qur’anic scholar Mawlana Abul Kalam Azad in The Tarjumanal Qur’an1 has translated this verse as follows :—■
" A return to each other is permissible even after divorce has beenpronounced twice (in two successive months). Thereafter twowayBare open before the husbands—an honourable retention or a gracefulparting (after the pronouncement of divorce for the third time in thethird month). And it shall not be proper for you while divorcing yourwives to take away anything out of what you have given them. Itwill be different if the husband and the wife agree to,any such arrange-ment out of a fear that they cannot keep within the bounds set by God.
– Then, if you fear that the two cannot keep within the bounds set byGod, no blame shall attach to either for what the woman herselfgiveB away for her redemption. These are the bounds of God ; thereforeoverstep them not, for, they who overstep the bounds of God, areindeed transgressors. ”
Much importance has been attached to the presence of the word “ you ”in this verse for the word “you” in the phrase “if you fear” suggeststhat a third party other than the parties themselves is to bring his mindto bear on the question. In all the Qur’anic translations which I haveexamined this word “you” appears. Indeed in some of them thetranslators interpolate after the word “you ” the word “judges” withinbrackets so as to indicate that this is a matter for the judge who ishearing the dispute in question. Thus Abdullah Yusuf Ali in "The HolyQur’an 8 ” interpolates the word “ judges ” after the word “ ye ” by way ofexplanation, and in a note to the text states that if there is any fear in…the husband refusing the dissolution of marriage…then in such excep-tional cases it is permissible to give some material consideration to thehusband, but the need and equity of this should be submitted to thejudgment of impartial judges, that is, properly constituted courts.
Likewise Maulana Muhammad Ali states 8 that the words “if ye fear 'yevidently refer to the properly constituted authorities.
The acceptance of the interpretation that the word “ you ” refers tothe judges does not however resolve the problem before us, for the word“ then ” links this sentence to the sentence which speaks of husband and1 VoL II, p. 103.» Vol. I, p. 00.
* The Holy Qur’an, 6lb ed., p. 89.
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wife both agreeing to such an arrangement fearing that they cannot keepwithin the limits of Allah. It seems therefore that it is in that situation,namely, where both spouses are agreed that they cannot continue together,that the judge comes in as the representative of the community to deter-mine whether in fact the spouses cannot keep within the limits of God. Therole of the judge then arises only in the context of the essential pre-requisiteof the spouses first agreeing to such an arrangement out of a fear inthemselves that they cannot keep within the limits of God. U'
It is true that not every translation brings out the importance of thisword “ then ” but Mawlana Abul Kalam Azad is not alone in rendering thistranslation.
For example Maul ana Mohamed Ali’s translation1 runs aa followc »-
“Divorce may be (pronounced) twice ; then keep (them) in goodfellowship or let (them) go with kindness. And it is not lawful foryou to take any part of what you have given them, unless both fearthat they cannot keep within the limits of Allah. Then if you fearthat they cannot keep within the limits of Allah, there is no blameon them for what she gives up to become free thereby. These arethe limits of Allah, so exceed them not ; and whoever exceeds thelimits of Allah, these are the wrongdoers.”
If more than one translation should stress the connection between thissentence and that which went before, while some appear not to stress theconnection, it is not unreasonable to assume the existence of the connectionin the original, though its importance may be under-emphasised in some ofthe translations.
Indeed even translations which do not stress this connection make itquite dear that the sentence relating to ye (judges) is dependent upon thepreceding sentence.
Thus Mohamed Marmaduke Pickthall translates the verse2 asfollows:—
“Divorce must be pronounced twice and then (a woman) muBt beretained in honour or released in kindness. And it is not lawiulfor you that ye take from women aught of that which ye havegiven them; except (in the case) when both fear that they maynot be able to keep within the limits (imposed by) Allah. And ifye fear that they may not be able to keep the limits of Allah,in that case it is no sin for either of them if the woman ransomherself. These are the limits (imposed by) Allah. Transgressthem not. For whoso transgresseth Allah’s limits : such arewrongdoers. ”
The word “ and ” in this translation seems to be a strong indication ofthe connection between this sentence and that which goes before. Indeedon any construction it would seem artificial to read the sentence-containing the word “ye” as though it stood in isolation, withoutregard to it3 context.
* The Holy Qur’an, 6th ed., p. 98.
■ “ The Meaning of the Glorious Koran ”, Mentor : Religious Classics, p. 64.
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Having regard then to these considerations, the order by the judge wouldnot be available in cases where both parties are not so agreed, and it isonly the wife who fears inability to keep the limits ordained by God.
Having made these observations in regard to the Qur’anic verse, Iproceed now to turn to the Hadiths which are the other primary sourceof authority in Islam for a Khul divorce. It is necessary to do so, however,in the light of the teachings of the Shall school.
When we consider the commentaries of the Shafi sohool upon thesetraditions we must remember that, whether they refer .expressly to theQur’anic verse or not, there can be no doubt that they are written againstthe background of the verae in question, for it is inconceivable that anyIslamic commentator could in a discussion of a matter of Islamic lawpossibly lose sight of the Qur’anic verse which constitutes the veryfoundation of the concept in question. When therefore writers of theShafi school make their comments upon the traditions of the Prophetrelating to the Kkula divorce it is but reasonable to assume that theseare comments which have regard both to the Qur’anic verse and to thetraditions of the Prophet. I do not think there can be much substancein the contention that these comments lose sight of the basic provisionsof verse 229 itself.
The traditions in question are briefly as follows :—
Jamilah, daughter of a'sister of Abdulla Bin Ali Sahool is related tohave gone to the Prophet and stated that although she had no reason toreproach her husband, Sabet, either on grounds of morals or of faith,she disliked him and that having embraced Islam she did not want tobe guilty of infidelity. The Prophet inquired whether she was preparedto return the garden which she received from her husband as dowry.She answered that she was ready to do so. The marriage was thenbrought to an end but whether it was upon an order of the Prophet whichoperated independently of the husband or whether it was upon anindication by the Prophet to the husband that he should grant hera divorce has been much debated.
In regard to Habiba, daughter of Sahl, the Tradition is that she likewiseapproached the Prophet saying that Sabet was so short and ugly that ifshe did not fear God, she would have spat at him when he came to her.This too ended similarly and has raised the same debate.
Before examining the actual records of these Traditions it is necessaryto say a word about the manner in which the Traditions were recorded.
The word “ Hadith ” would appear to have the general meaning o£beihig a communication or narrative in general, whether religious orprofane. In Muslim law however it has the particular meaning of arecord of the actions or sayings of the Prophet and his companions *.
1 Encyclopaedia oj Islam, p. 116.
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Now, a proper Hadith of the Prophet not only sets out what the Prophetsaid or did, but also sets out the names of the persons who had handed onthe Tradition to one another. This part, the Isnad or Sanad, is the“ support ” of the Tradition and if there is a chain of communication,that chain of communication is set out with great particularity beforethe text or substance of the Hadith itself.
Consequently in all collections of Hadiths the Isnad or Sanad which isthe test of reliability of each Hadith is closely scrutinised by each commen-tator, and depending on the care and sense of discrimination of thecompiler, the various compilers of Hadiths ranked among themselves inorder of reliability and authority.
Having regard to the great reverence which naturally attaches to theHadiths of the Prophet throughout the whole Islamic world, some of thecollectors of these Hadiths have gone to tremendous trouble to examinethese Hadiths critically, inquiring when and where the original transmitterlived, whether he was personally acquainted with the previoustransmitter from whom the Tradition came down to him, and howdependable each link is in the chain of transmission. Accordinglysome of these compilers are considered very reliable and some consideredweak.
In course of time it came to be generally accepted that six of thesecollections were considered authoritative, all of them collections of aboutthe 3rd century A.H. They came to be looked upon as sacred books ofthe second rank next to the Qur’an. These six are in order of reliabilitythe collections of (1) A1 Bukhari (2) Bukhari Muslim (3) Abu Dawud
Al-Trimidhi (5) Al-Nasai and (6) Ibn Madja. These collections are■ referred to as the six books1 and their order of reliability is as set outi abovea. Particular weight and esteem attach to the collections ofBukhari and Muslim.
Although Ibn Madja’s collection has been included among the six,it was long viewed with suspicion on account of many “ weak traditions ”in it3.
The Pakistan Supreme Court in Khurshid Bibi v. Muhamad Amin,after referring to these two traditions of the Prophet, concludes that theyindicate that the Prophet decreed a divorce, or in other words, that theyindicate authority in an external third party to put the spouses apart.
Now it would appear that the version of the Hadiths relied upon by theSupreme Court of Pakistan in Bibi v. Amin4 is Ibn Madja’s version andaccording to this version it is said that upon Habiba indicating to theProphet that she was willing to return the garden “ the Prophet of Allahseparated them ”. In regard to the Tradition of Jamilab, the Pakistanjudgment apparently relies on Bukhary for the version that “ themessenger of Allah ordered him and he separated her ”.
1 Encyclopaedia of Islam, p. 119.' See Muslim Law, by Vermon, 1962 ed., p. 11.
* Encyclopaedia of Islam, p. 119.• At p. 122-3.
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As we have observed, however, Ibn Madja’s would appear to be the leastreliable of the Bix collections of Hadiths. Moreover the actual versionof Bukhari1 does not say that the Prophet ordered Sabet to divorce her.Bukhari in fact gives the version in these terms : ‘The Prophet said“accept the garden and divorce her once Of this, Asqalani, a greatauthority on Shall law Bays® “ It is an order of guidance and correctionand not of compulsion
What is more important however seems to be the fact that even inthe quotation given by the Pakistan Supreme Court the Prophet has nothimself separated them as a judge would, but either asked or orderedSabet to divorce her. In other words it seems clear that the desired resulthas been achieved through the instrumentality of the husband, for if theProphet had desired to separate them as by a decree of court, there wasnothing to prevent him from decreeing accordingly without requiringSabet to give his wife a divorce.
There is also another tradition which should be borne in mind in thisconnection, and that is the statement of the Prophet that “ The mostdetestable of lawful things near Allah is divorce.” 3
Having now reviewed the relevant passage in the Qur’an and therelevant Hadiths, it is necessary to move on to the writings of the Shafijurists.
At the very commencement it is necessary to make some observationsregarding the writings of Imam al Shafi himself, for without someunderstanding of his personal career one may well arrive at a wrongconclusion regarding his views on many juristic matters.
Confusion regarding Imam Shafi’s views often results from a failure toappreciate that his juristic writings fall into two distinct periods ofactivity, and that it is the views expressed by him during the latterperiod that are properly the views pf the Shafi school.
Al Shafi, apparently a distant relation of the Prophet, was bom in A.D.767. He studied in Mecca, and after some years in Medina and in theYemen, took iip residence in Baghdad in 810 A.D. and set up as a teacherthere. He returned finally to Egypt in A.D. 816.
His earlier juristic period dates back to his years in Iraq and the laterperiod to his years in Egypt. When examining any item from his trulyamazing outputof writihgs(he is thought to have written over one hundredvolumes) it is necessary therefore to distinguish between the writings of hisearlier period and the writings of his later or Egyptian period. In hisearlier period he was a follower of Hana'fi but it was in the later periodthat he set himself up as an independent jurist and founded a school ofhis own.
1 Al-Hadie, Karim, Vol. 2, p. 703.* Fathul Bari, Part 9, p. 322,
* Al Hadis, ibid. p. 702.
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Most of his works have not survived and the bulk of surviving title*appear in the Kitab ul umm, a collection of his writings and lecturesrunning to seven volumes published in Cairo in 1321-25, long after hisdeath. The views of Shafi have been recorded also by some of his-outstanding followers such as Ibn Hadjr Al-Asqalani.
It would appear from the Kitab ul umm1 that Imam Shafi had saidthat khula is a talak and therefore will not occur except by the meansby which talak will occur.
Although the Kitab ul umm is a collection of Shafi’s works from bothperiods, still it is a collection by a disciple (Sulaiman al Muradi) who isgenerally thought to be a representative of his later teachings.2 Thiswould therefore incline us to the view, in the absence of a contrary passage,that Imam Shafi’s later view was that khula was a talak. It may benoted also that the Kitab ul umm is generally used as a source book forShafi jurists, and a statement appearing therein carries great weightas an authoritative pronouncement by Imam Shafi.
We have been referred also to the Fathul Bari, Volume IX, page 308by Asqalani.
This incidentally is a passage referred to also by the Supreme Courtof Pakistan in Khurshid Bibi v. Amin9.
The passage as cited in the Pakistan decision would appear to indicatethat the earlier view of Shafi was that khul is a divorce, that is to say onegranted by the husband whereas his later view was that it is a dissolutionof marriage and not a divorce, that is to say one granted by an externalauthority.
Through the industry of learned counsel we have, however, beenfurnished with a full translation of the passage wherein the quotationcited by the Pakistan Supreme Court appears. It would appear that thechapter on khula states that the jurists hold three different opinions onthis matter all based on various pronouncements of Shafi.
What the Pakistan Supreme Court refers to is only one of these views.A little above tbe statement of this view there is in the Fathul Bari astatement to the effect that Shafi had stated in his new books (the newFatwas he issued in Egypt) that khula is talak (that is to. say granted bythe husband) and in elaboration of this it is stated further on, that Shafiin his best-known work—Al Imla—had expressed the view that khula istalak. The commentary states further that it is the view of the majorityof jurists that it is a word that cannot be “owned” except by a husband.After the expression of the view cited by the Pakistan Supreme Court,there is the third view which is stated to be mentioned in the Umm, thatif the husband does not intend talak there will not be a separation at
1 Part IX, p. ISO.1 Shorter Encyclopaedia of Islam, p. SIS,
* PXJ>. (1907) 8.0. 97-149 at p. 126.
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all. It would appear therefore that this is the last view of Shafi. Moreoverthe text itself says that according to Mohamed Ibn Murdazy, this is thelast word of Shafi.
To say the least therefore it does not appear to be altogether clearthat there is unambiguous authority from the writings of Imam Shafi to theeffect that a khula divorce can be granted by the judge alone without theintervention of the husband.
Passing from Shafi to his disciples, we have the views of A1 Qastalanireferred to at page 127 of the Pakistan judgment. Qastalani is therequoted as having stated that khul is not valid in the absence of theSultan or the judge. This is an interpretation on the basis of the Qu’ranioverse “ If you fear disagreement between them ”, to the effect that thefear there referred to is ascribed to others than the spouses, and thattherefore the verse implies the publio authorities.
Here again we have been furnished with a translation of Qastalanishowing this passage1 in its context.
It would appear that immediately before the passage cited by the PakistanSupreme Court is the sentence “the author of Fathul Bari said that Buhkari,by bringing it out thought of pointing out what Saeed Ibnu Mansoorannounced, reporting from Hassen ul Baary, who said “ Khul is not validin the absenoe of the Sultan ”. The passage quoted is not therefore theview of Qastalani but merely a recapitulation of the views qf others. Whatis significant, however, is that immediately after this passage, Qastalanigoes on to say “ Annanhas has rejected it (that is the interpretation thatthe verse implies public authorities), saying that it is a statement to whichneither the grammatical position nor the word or meaning lent theirsupport ”. The author goes on to observe that if talak is allowed withoutthe judge, then khula is also like that. Here again the view actuallyexpressed by Qastalani would appear to be different from the sense inwhich the Pakistan Supreme Court understood it. It cannot thereforebe stated that the Shafi school unambiguously holds that such a divorcemay be granted apart from the instrumentality of the husband.
I proceed to refer to a few more jurists of the Shafi school in order toascertain whether we can Bay with assurance that in the view of theShafi school a khula divorce may be obtained by the wife withoutparticipation of the husband.
Ibn Hadjar Al-Haitami, a famous Arabic jurist of the Shafi’ite schoolbornin 1504 in Egypt, wrote a commentary on the Minhadj A1 Talibin ofAl-Nawawi. This commentary became, next to the Nihaya of Al-Ramli,the authoritative code of the Shafi’iteB. The followers of Ibn Hadjarand of Al-Ramli at first put up a vigorous fight against each other,but enand by considering both Ibn Hadjar and Al-Ramli as thedecisive authorities on the Shafi’ite point of viewa. Consequently Ibn
* Irthad-al-Sari, Vail. 3, 149.* Encyclopaedia of Islam, p. Ifl.
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Hadjar’s Tuhfat and AI-Ramli’B Nihaya have been regarded almost aathe law books of the Shafi school since the 16th century1.
Legal opinions or Fat was of Shafi jurists must necessarily thereforetake into account the commentary of Ibn Hadjar. This commentary iBknown as the Tuhfathul Al-Muhtadj 2. In a chapter headed “ Khula ”this work Btates as a pre-requisite to the validity of the khula that itshould “ come out from the husband ” and that it is essential that thehusband should be a person whose talak is valid because khula is a talak.
Likewise Al-Ramli, sometimes known as “Little Shafi”, in hiscommentary Nihayat-al-Mukhtaj3, on Navavy’s M.inhadj states thatthe Khula should come from the husband and that the husband shouldbe a person whose talak is valid because khula is a talak.
A1 Mahally who wrote a commentary on Navavy’s Minhadj and sets outthe Shafi’ite viewpoint4 states that the separation of spouses by pronounc-ing the word khula is a talak. Again A1 Bajoory states in his commentaryon the Shafi book Matan Abu ShiyaB that one of the five essential factorsof a khula is the husband and that khula is a form of talak. The sameview, namely that the husband is one of the five essential factors for khula,is expressed also by Sulaimanul Bujairamy in his commentary on theShafi book Matan Abu Shiya6.
Passing now to one of the prime authorities, the Minhadj-et-Talibinitself7, this authority deals in chapter 36 with Khula and in chapter 37with Talak (The chapters are headed Divorce and Repudiation respectivelyin the English translations but these words mean Khula and talakrespectively, as is set out both in the Table of Contents at page IX andin the Glossary at pages 661 and 564). Now, in the chapter on khula it isstated that divorce is the separation of husband and wife for acompensation paid by the wife, whether the husband uses the word“repudiation” or the word “ divorce ”. It goes on to say that divorceis permitted only to a husband who can lawfully repudiate his wife.The clear implication is that the khula divorce is a process in which thehusband’s participation is essential. Throughout the chapter there is nodiscussion which appears to visualise the khula as being possible by theunaided action of the wife.
Indeed at page 322 the situation is expressly contemplated of the wifetaking the initiative in obtaining such a divorce but it is made quiteclear that the wife must ask to be repudiated and the husband mustconsent. This matter is put beyond doubt by the observationimmediately thereafter that “this is a bilateral contract of the samenature as a piece of job work ”.
1 Ibid, p. 445. See also Aghnides Mohamedan Theories of Finance, p. 191; Thiswork in its valuable bibliography classifies Arabic sources according to schools.
Part III, p. 227.‘ Part VI, p. 388.4 Part III, p„333.
Part II, pp. 153-4.'• Hashyathul Bujairamy, Part III, p. 392.
1 Nawawy’s Minhadj et Talibin—translated into English from the French edition
of Vanderberg by S. O. Howard, p. 320.
WEERAMANTRY, J.—Mirza v. Ansar
307
In tho result then the view of the Shah school seems to be that even ina khula divorce the participation of the husband is required. Certain it isthat the Shall jurists have taken this view of the khula upon a considerationnot only of the hadith but also of the relevant Qur’anic verse, and in thatstate it is scarcely competent for this court upon a reading of the Qur’anioverse to pronounce otherwise. The fact that the Pakistan SupremeCourt in Mst. Khurshid Bibi v. Muhammad Amin has reached a differentconclusion does not bind us, for the Pakistan Court was examining asituation in which the ruling law, namely, that of the Hanafi school, wassilent on the question, and assistance was therefore sought from thewritings of jurists of the other schools. We are in an altogether differentposition, as the writings of the governing school, namely, the Shallschool, do contain authority on the matter we are investigating and it isnot necessary for us to search further afield as the Supreme Court ofPakistan was obliged to do.■ ■
Moreover, although the Supreme Court of Pakistan did refer to thewritings of jurists of the Shall school among others, it was not particularlyconcerned, as we must be in this jurisdiction, to find out specificallywhat the views were of the Shall school and more especially what thelatest views were of Imam Shall himself.
We have also seen how in regard to some of the writings of the Shafijurists themselves, a reading of them in their proper context would appearto indicate a somewhat different result to that which the Pakistan Courtreached, not being particular to focus its attention upon, the questionwhether the statement of Imam Shafi expressed his original or laterviews.
Having said so much in relation to the original authorities we shouldnow refer briefly to the views of modem commentators and the dictacontained in the case law of this country.
I proceed to refer to a few passages from some of the accepted modemcommentaries on the Muslim law.
According to Baillie *, khula is in law a demission or a laying down bya husband of his right and authority over hiB wife for an exchange, totake effect on her acceptance, by means of the word khula. He goes onto observe that the presence of the Sultan is not required as a conditionof the legality of khula.
Hamilton2 likewise is of the view that whenever “enmity takes placebetween husband and wife, and they both have reason to apprehend that theends of marriage are not likely to be answered by a continuance of theirunion, the woman need not scruple to release herself from the power ofher husband, by offering such a compensation as may induce him toliberate her. The notion of agreement between the spouses is implicitin this pronouncement.
1 Digest of Mohamedan Law, 1957 ed., p. 305.
* The Deday a, Crady's ed., 1963, p.
■308
WEERAMANTRY, J.—Mirza v. Ansar
Likewise, Wilson’s Anglo-Mohammedan Law1, describes a Khuladivorce as being accomplished by means of appropriate words spoken orwritten by the two parties or their respective agents, the wife offering,and the husband accepting, compensation out of her property for therelease of his marital rights.
Mulla’s Principles of Mohamedan Law 2, in its enumeration of thevarious forms of divorce, lists khula as a divorce by agreement betweenhusband and wife. It goes on to observe3 that such a divorce is effectedby an offer from the wife to compensate the husband if he releases herfrom her marital rights and an acceptance by the husband of the offer.It is noteworthy that this edition * expresses disagreement with thedecision in Balqis Fatima's case5 (which held that a wife couldobtain a khula divorce from a court) and suggests that it requiresreconsideration. The editor of the 16th edition refers in his addenda 6to Khurshid Bibi's case and points out that the view expressed regardingBalqis Fatima’s case is not his own. However that may be, it seemsclear that the editor who put in the note of disagreement withBalqis Fatima's case did so because he felt that decision to be not inconsonance with the principles enunciated by Mulla in his text. It maybe observed that the view that Balqis Fatima’s case neededreconsideration was the view of the previous editor who had editedthe 15th edition, that is Sir Sied Sultan Ahmed, who, like Sir DinshaMulla, was a former Law Member of the Governor-General’s ExecutiveCouncil. He had also been a judge of the High Court of Patna.
So also, Fyzee7, in classifying the forms of dissolution of marriageknown to Muslim law, refers to dissolution by act of parties, dissolutionby the wife, dissolution by mutual consent, and dissolution by judicialprocess. The khul appears in this classification under divorce by mutualconsent. The two essential conditions for a khula divorce are statedto be 8 (1) mutual consent of the husband and wife, and (2) someconsideration passing from the wife to the husband. The authorpoints out that the word “ khul ”, as already observed, means “ to takeoff clothes ” and therefore “ to lay down one’s authority over a wifeThis would seem to suggest in other words an act of the husbandrelinquishing his matrimonial authority.
Tyabji9 describes khula as a mutual agreement between the husbandand the wife to dissolve the marriage for some consideration proceedingfrom the wife to the husband. He points out10 that such an agreement iscalled a khul if the wife alone is desirous of having the marriage dissolved.If both parties are so desirous it is called a mubaraat.
1 1930 ed., p. 146, s. 69.
16th ed., edited by M. Hidayathulla, Chief Justice of India, p. 295, s. 319.
» At p. 296.* At p. 297.» P.L.D. (1959) Lahore 566.
® At p. 389.7 Outlines of Muhamedan Law, Oxford University Press, p. 126.
At p. 140.• Mohamedan Law, 3rd ed., p. 204.10 At p. 232.
WEERAMANTRY, J.—Mirza v. Ansar
30»
In either event, it will be seen that agreement ofboth parties isnecessaryand we must not confuse the fact that khul arises from the desire of thewife alone with the notion that the wife alone by her unilateral act withoutthe husband’s participation therein can obtain it. All that is meant isthat the wife alone desires the divorce and the husband has no desire toput the wife away but arrives at an agreement with her to do so for aconsideration paid to him by her.
Passing now to the somewhat scanty dicta that do exist in ourcase law on the question of khula divorce, I would refer in the firstinstance to Beebi v. Pitche 1 where Jayewardene' A.J. was consideringcertain provisions of the Code of 1806. He observes2 “it may be thatin view of section 85 a ‘ khula divorce ’ must be granted or confirmedby the judge. That can be done even at the present day. For ithas been held that ‘ the sitting magistrate ’ or ‘ competent judge ’ ofthe court corresponds to the District Judge of the present day—AyeshaUmma v. Abdul Careem 3.”'
An examination of the Code would appear to show however thatsection 85 relates back to section 80 which is a case where both partieswish to be divorced, and the observation of Jayewardene A.J. cannottherefore be understood to mean that a wife desiring a divorce from ahusband who desires the marriage to continue can obtain that divorcefrom a court of law against the husband’s wish. As Bertram C.J.observed in King v. Miskin Umma4 “ the functions of the ‘ sittingmagistrate ’ under section 85 in the case of a khula divorce must beconfined to the assessment of compensation where a khula divorce hasalready been agreed upon by the parties. ’’
In any event we must remember moreover that the position today isvery different from the position under the Code of 1806. That Codewas neither accurate nor comprehensive, being only a rough compilationof laws8 and indeed by reason of itB very incompleteness had beendescribed by Akbar J.8 as a calamity. It was largely to rectify thisunsatisfactory state of the Muslim law relating to matrimonial mattersthat the legislature intervened with subsequent legislative measures,and that matters that arise for determination today must be determinedin terms of the present Act.
In King v. Miskin Umma7 Bertram C.J. makes the further observationthat although it is a recognised principle of Mohammadan law that ahusband is free to divorce his wife without assigning a cause, the wife’sposition is very different. He cites in support Sir Rowland Wilson’sDigest of Anglo-Muhammadan Law,8 to the effect that “the wife cannever divorce herself from her husband without his consent but she mayunder some circumstances obtain a divorce by judicial decree ’’. 1
1 {1924) 26 N.LJt. 277 at 282.• At p. 282.» (1880) 4 S.O.O. 13 at p. 14.
* (1925) 26 N.L.R. 330 at 337.» ibid, at 333. • 1 CUi. Rec. 3.
’ Supra.8 4th ed., p. 143.
310
WEERAMANTRY, J.—Mirza v. Ansar
ThiB principle1 is a general statement relating to all types of divorce.More specifically, in regard to the khula divorce Wilson observes,2 as Ihave already pointed out, that “ a khula divorce is accomplished atonce by means of appropriate words spoken or written by the two partiesor their respective agents, the wife offering and the husband acceptingcompensation out of her property for the release of his maritalrights It seems clear from this specific reference to the khula divorcethat the agreement or participation of the husband is essential for itsaccomplishment.
It i3 true that. Sir Boland Wilson later on cites 3 a Burmese authority tothe effect that a court would decree khul on good cause shown by thewife, against the husband’s wishes, but he also observes that such a coursewould to a certain degree assimilate the wife’s position as regards divorceto that of the man, and that the point has never come up for judicialdecision in that form in British India.
The passage cited by Bertram C.J. appears then to indicate a generalprinciple that there is a fundamental difference between the position ofthe wife and the position of the husband in regard to their rights to obtaina divorce unilaterally. The principle which at the time of Wilson’s workhad not yet received consideration from the Courts of India, and whichhad the approval of Bertram C.J. is one which cannot lightly be reversedunless there is clear warrant under our law for doing so. I
I next refer to the judgment of Canekeratne J. in Noorul Halifa v.Marikkar Hadjar 4 wherein he states that a wife can never divorce herselffrom her husband without his consent except that she may in certaincircumstances such as ill-treatment, neglect or impotence, obtain adissolution or cancellation of the marriage. Regarding the khula divorcehe observes6 also that “ the woman can release herself from the marriagetie by giving up some property in consideration of which the husband isto give her a khula. She takes the initiative in asking to be repudiated.The divorce is the sole act of the husband though granted at the instance ofthe wife and purchased by her. Some valuable consideration passes fromthe wife as the party seeking the divorce to the husband. The wifeoffering, and the husband accepting, compensation out of her propertyfor the release of his marital rights. It is called a divorce by khula.”
He further states 9 that a khula divorce is nothing more than an offerby the wife to the husband to divorce her. The offer does not result inlegal rights unless and until it is accepted by the husband and no stepscan be taken by her in a court of law if the husband refuses to acceptthe offer. Consequently a khula divorce though in form a divorce of thehusband by the wife operates in law as a divorce of the wife by thehusband. .It was not necessary however for Canekeratne J., expresslyto decide on the matter in the context of the case before him.
1 Appearing in the 6th edition oj Wilson’s work at p. 138, section 60.
6th ed. p. 146, section 69.* 6th ed. p. 154.
(1947) 48 N.L.R., 529 at 534.* ibid. • (1947) 48 N.LJR. 529 at 638.
WEERAMANTRY, J.—Mina v. Ansar
311
In the same case, Dias J., categorising the forms of divorce recognisedby the Muslim law1, describes the khula divorce as a dissolution of themarriage at the instance of the wife, upon whose compensating herhusband the latter pronounces talak.
The case law of this country then, so far as the meagre references tothis subject therein indicate, seems to lean against the view that thekhula divorce is available to the wife without the participation thereinof the husband.
It only remains to refer briefly to some of the recent Indian and Pakistandecisions preceding Kkurshid Bibi’s case wherein the matter has beenconsidered.
I have already referred to the decision of the Full Bench of the PakistanSupreme Court in Khurshid Bibi’s case2 and have indicated the reasonswhy, with the utmost reBpect to that court as a most authoritative inter-preter of the Muslim law, we find ourselves unable to follow that decisionin thiB country. That decision confirmed the view in Mst. BalqisFatima v. Najmul Ikram Qureshi8 where the Pakistan Supreme Courtheld that a wife could come before court and obtain a khula divorce if shewas prepared to restore the benefits she had received and if the judgeapprehends that the limits of God will not be observed.
There were however earlier decisions to the contrary, which were over-ruled by the Pakistan decision and we find that the decisions in someof those earlier oases would be more in consonance with our jurisprudence.
In Umar Bibi v. Mohammed Din1 it was held that the act of divorcein khula is as much an act of the husband as it would be in muharaat(i.e. mutual release). This decision further held that it was not possiblefor a Quazi or court to effect a khula divorce in place of the husband.In that case Abdur Rahman J., points out that as regards both the wivesof Sabet “the divorce is reported to have been granted by Qais and notpronounced by the Prophet although it may be admitted that out of thereverence that Muslims had for the Prophet of Islam, it would have beenimpossible for Qais to disobey his order. The point however remainsthat the divorce was granted by Qais and not by the Prophet ”.®
I find myself very much in agreement with this view, as it appears toaccord with the teachings of the school of Islamic jurisprudence whichholds sway in this country.
In Saida Khanan v. Mohamed Sarny6, Cornelius A.C.J. referring to akhula divorce observes that he respectfully agreed with Abdur RahmanJ., in Umar Bibi v. Mohamed Din. Cornelius A.C.J. said7 that under theMuslim law matters of aversion or dislike cannot form a ground for the
1 ibid, at p. 539.» P.L.D. (1987) S.C. 97-149.• P.L.D. (1959) Lahore 566.
(1945) A.I.R. Lahore 51.» ibid, at p. 56.
(1952) PJj.D., W.P. Lahore 113 ; see Fyzee's Oases on Muhammadan Law in
India and Pakistan, p. 169 at 18S.
’ ibid, at p. 188.
312
WEERAMANTRY, J.—Mina v. Ansar
wife to seek dissolution of her marriage at the hands of a Quazi or a court,but they fall to be dealt with under the powers possessed by the husband,as well as the wife under Muslim law as parties to the marriage contract..
One other case to be referred to is the older decision in MoonsheeBuzvl-ul-Raheem v. Luteefut-oon-Nissa1, wherein it was decided that thakhul form of divorce takes place at the instance of the wife and withthe consent of the husband.
A review therefore of the original sources, the commentaries of thagreat Islamic writers, the views of modern commentators and the dictacontained in the case law of this country would appear to point to thaparticipation in the khula divorce of the husband himself. This Courtwould be reluctant in the face of this body of authority to extend thalaw as hitherto understood in this country to enable a wife unilaterallyto obtain this form of divorce from the public authorities.
The contention of the appellant must therefore fail and I would upholdthe judgment of the Board of Quazis and dismiss this appeal.
Teh'
In view of all the circumstances of this case, I make no order in regardto the costs of this appeal.
Appeal dismissed. *
* (1861) 8 Moore’s Indian Appeals,379,reported in Ejpet's Casts on MuhammadanLaw in India and Pakistan, p. 169 at 186.